When it comes to environmental risks and harms from operation in deep waters,
the coastal state is usually thought to be the party with most at stake.
75 For that
reason, compensation may be sought, in order to relief the usually tragic consequences of an environmental disruption offshore. This is partially true in light of the
possible development of hydrocarbons in the seafloor beyond coastal state jurisdiction, as seems to be the case off the Canadian coast. For the other activities, in
particular deep-sea mining, there cannot be traditional “oil spills”, but ecosystem
alterations and eventual biodiversity losses, which would not affect a particular state,
but the entire international community. Hence, it is not against international law to
conclude that coastal states with potential deep-sea resources may adopt stricter
regulations for their exploitation than the standards applicable by the ISA.
5.3.2 Controversies Regarding the Size of the Area
and the Emergence of the Continental Shelf beyond
200 nm
The Area is defined in Art. 1 (1) (1) UNCLOS as the “seabed and ocean floor and
subsoil thereof, beyond the limits of national jurisdiction”. A key element of that
definition is the phrase “beyond national jurisdiction”, indicating the definition’s
negative (or a contrario) nature and emphasizing the need for coastal states to
delineate their precise outer continental shelves, so that the exact size of the Area
may be one day plainly determined. Combined with Art. 134 (3), the outer limits of
the continental shelf, delineated in accordance with Art. 76 criteria and on the basis
of the CLCS’ recommendations, will establish the boundary between the seafloor
within and beyond national jurisdictions.
On this regard, two factors complicate the assessment of the Area’s size: the
possible indefinite protraction in time of outer limits’ delineation, and the ISA
incapacity to interfere in that process. On the first complication, the literal wording
of Art. 8, Annex II of the Convention suggests that the process of delineation could
extend indefinitely in time, as the CLCS may reject the outer limits claimed by a
coastal state, and the coastal state may submit revised submissions ad eternum.
76 In
this sense, the extent of the Area gets particularly arduous to assert, in comparison to
other maritime zones, such as the high seas or the EEZ, for it depends on the
delineation of all outer limits of the continental shelves of the world.
75 Chircop (2011), p. 193.
76 Art. 8, Annex II UNCLOS reads: “In the case of disagreement by the coastal State with the
recommendations of the Commission, the coastal State shall, within a reasonable time, make a
revised or new submission to the Commission”. This provision has been entirely absorbed by the
CLCS Rules of Procedure, Rule 53, paragraph 3, without adding any restrictions on the amount of
revised submissions a coastal state may forward the Commission.
126
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .
the coastal state is usually thought to be the party with most at stake.
75 For that
reason, compensation may be sought, in order to relief the usually tragic consequences of an environmental disruption offshore. This is partially true in light of the
possible development of hydrocarbons in the seafloor beyond coastal state jurisdiction, as seems to be the case off the Canadian coast. For the other activities, in
particular deep-sea mining, there cannot be traditional “oil spills”, but ecosystem
alterations and eventual biodiversity losses, which would not affect a particular state,
but the entire international community. Hence, it is not against international law to
conclude that coastal states with potential deep-sea resources may adopt stricter
regulations for their exploitation than the standards applicable by the ISA.
5.3.2 Controversies Regarding the Size of the Area
and the Emergence of the Continental Shelf beyond
200 nm
The Area is defined in Art. 1 (1) (1) UNCLOS as the “seabed and ocean floor and
subsoil thereof, beyond the limits of national jurisdiction”. A key element of that
definition is the phrase “beyond national jurisdiction”, indicating the definition’s
negative (or a contrario) nature and emphasizing the need for coastal states to
delineate their precise outer continental shelves, so that the exact size of the Area
may be one day plainly determined. Combined with Art. 134 (3), the outer limits of
the continental shelf, delineated in accordance with Art. 76 criteria and on the basis
of the CLCS’ recommendations, will establish the boundary between the seafloor
within and beyond national jurisdictions.
On this regard, two factors complicate the assessment of the Area’s size: the
possible indefinite protraction in time of outer limits’ delineation, and the ISA
incapacity to interfere in that process. On the first complication, the literal wording
of Art. 8, Annex II of the Convention suggests that the process of delineation could
extend indefinitely in time, as the CLCS may reject the outer limits claimed by a
coastal state, and the coastal state may submit revised submissions ad eternum.
76 In
this sense, the extent of the Area gets particularly arduous to assert, in comparison to
other maritime zones, such as the high seas or the EEZ, for it depends on the
delineation of all outer limits of the continental shelves of the world.
75 Chircop (2011), p. 193.
76 Art. 8, Annex II UNCLOS reads: “In the case of disagreement by the coastal State with the
recommendations of the Commission, the coastal State shall, within a reasonable time, make a
revised or new submission to the Commission”. This provision has been entirely absorbed by the
CLCS Rules of Procedure, Rule 53, paragraph 3, without adding any restrictions on the amount of
revised submissions a coastal state may forward the Commission.
126
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .