The functions of the Commission are basically twofold: to scrutinize data submitted by coastal states concerning the outer limits of the continental shelf beyond
200 nm; and to provide scientific and technical advice, if requested by the coastal
state, during the drafting of the submission.
50 In order to accomplish those functions,
the CLCS is presumed to have the necessary competences, albeit limited materially
to the application of Art. 76.
Ted McDorman accurately considers the Commission to have three main roles,
although it may other roles may be recognized. For that author, the Commission is a
legitimator of the delineation process comprised in Art. 76 UNCLOS, a role slightly
different from the granting of legal or political approval. Secondly, the Commission
has a procedural role, in that its actions are inspired by provisions of the Convention
and by its own Scientific and Technical Guidelines (STGs) concerning the delineation process. Finally, it is informed by an informational role, once the procedural
phase is overcome, consisting of publishing charts and information relating to outer
limits of outer continental shelves for access by the international community.
51
To those, two more roles may be added. An advisory role, which allows the
Commission to offer scientific and technical advice to states drawing up their submissions;
52 and a considerably neglected role, one of massive scale and complexity,
of reducing (and eventually zeroing) undefined maritime boundaries between continental shelves and the Area—the role of pacifier. Thereby, the Commission is
expected to tackle a major uncertainty in the law of the sea provisions concerning
exploitation of the seafloor.
Only the outer limits which are established “on the basis of” the Commission’s
recommendations are “final and binding”, so Art. 76 (8) UNCLOS. This provision is
particularly relevant, because even though “the establishment of the outer limits is an
act within the sole discretion of a state”, those very limits will only be vested with
finality and bindingness if pursuant to the recommendations issued by the Commission.
53 The phrase “on the basis of” implies limited maneuver room for coastal states
when determining the outer limits of their continental shelf, without being contrary
to the recommendations of the Commission. States may even define the outer limits
of their continental shelf in disagreement with the Commission, for this is their
prerogative, based on the inherent nature of the right to a continental shelf and based
on the fact the CLCS does not emit decisions nor orders.
54 However, such limits
would not be final and binding, for the purpose of evidence in a dispute before an
international tribunal, and would not “easily attract international recognition”.
55 In
50 Art. 3, paragraph 1, Annex II, UNCLOS.
51 McDorman (2002), p. 301.
52 Art. 3, paragraph 1 (ii), Annex II, UNCLOS.
53 Kunoy (2012), p. 109.
54 The phrase “final and binding” refers to the outer limits of the continental shelf adopted in
accordance with the Commission’s recommendations; not to the recommendation per se, which
could not, by its very essence, be binding.
55 ILA (2004), p. 22.
3.3 Delineating: The Commission on the Limits of the Continental Shelf
57
200 nm; and to provide scientific and technical advice, if requested by the coastal
state, during the drafting of the submission.
50 In order to accomplish those functions,
the CLCS is presumed to have the necessary competences, albeit limited materially
to the application of Art. 76.
Ted McDorman accurately considers the Commission to have three main roles,
although it may other roles may be recognized. For that author, the Commission is a
legitimator of the delineation process comprised in Art. 76 UNCLOS, a role slightly
different from the granting of legal or political approval. Secondly, the Commission
has a procedural role, in that its actions are inspired by provisions of the Convention
and by its own Scientific and Technical Guidelines (STGs) concerning the delineation process. Finally, it is informed by an informational role, once the procedural
phase is overcome, consisting of publishing charts and information relating to outer
limits of outer continental shelves for access by the international community.
51
To those, two more roles may be added. An advisory role, which allows the
Commission to offer scientific and technical advice to states drawing up their submissions;
52 and a considerably neglected role, one of massive scale and complexity,
of reducing (and eventually zeroing) undefined maritime boundaries between continental shelves and the Area—the role of pacifier. Thereby, the Commission is
expected to tackle a major uncertainty in the law of the sea provisions concerning
exploitation of the seafloor.
Only the outer limits which are established “on the basis of” the Commission’s
recommendations are “final and binding”, so Art. 76 (8) UNCLOS. This provision is
particularly relevant, because even though “the establishment of the outer limits is an
act within the sole discretion of a state”, those very limits will only be vested with
finality and bindingness if pursuant to the recommendations issued by the Commission.
53 The phrase “on the basis of” implies limited maneuver room for coastal states
when determining the outer limits of their continental shelf, without being contrary
to the recommendations of the Commission. States may even define the outer limits
of their continental shelf in disagreement with the Commission, for this is their
prerogative, based on the inherent nature of the right to a continental shelf and based
on the fact the CLCS does not emit decisions nor orders.
54 However, such limits
would not be final and binding, for the purpose of evidence in a dispute before an
international tribunal, and would not “easily attract international recognition”.
55 In
50 Art. 3, paragraph 1, Annex II, UNCLOS.
51 McDorman (2002), p. 301.
52 Art. 3, paragraph 1 (ii), Annex II, UNCLOS.
53 Kunoy (2012), p. 109.
54 The phrase “final and binding” refers to the outer limits of the continental shelf adopted in
accordance with the Commission’s recommendations; not to the recommendation per se, which
could not, by its very essence, be binding.
55 ILA (2004), p. 22.
3.3 Delineating: The Commission on the Limits of the Continental Shelf
57