sort of subsidy or salary. Despite those limitations, the Commission has issued
26 recommendations thus far.
66
In entertaining a submission, the CLCS may invoke powers that are not restricted
to technical prerogatives strictu sensu¸ but assume a legal nature.
67 In fact, the
Convention must make recommendations in accordance with rules inherent to
UNCLOS Art. 76, and this task unavoidably implies some form of treaty interpretation. In that process, the Commission has found itself in the position of having to
precise, from a scientific perspective, some concepts mentioned in the Convention,
such as “seafloor highs”, “submarine elevations”, “submarine ridges” and “oceanic
ridges”. To interpret the Convention is, therefore, not an excessive and illegal action
by the CLCS. However, every act of interpretation ought to be examined on an
ad-hoc basis, in order to prevent abuses, such as excessive hermeneutics of the
meaning of Art. 76 provisions or even the creation of new law.
68 That delicate task
has rendered heated debates within the Commission itself and has put its Commissioners in the spotlight, with several publications discussing the extent of the
Commission’s mandate to interpret the Convention.
In the delineation procedure, solely two parties are active: the submitting coastal
states and the CLCS. Basically, the work of the Commission is called for when a
coastal state triggers the procedure present in Art. 76 (4) to (10) UNCLOS.
69
Questions have arisen as to the participation of third states in the analysis of a
submission. Despite the current architecture lacking a legal tool allowing for protests
and interventions within the CLCS, third states may not be deprived of the right to
voice out concerns, provided that direct interests of theirs be at stake. As the ILA
rightly observed, states should not in principle object to each other’s submissions
because Art. 76 (10) UNCLOS is sufficient to protect their interests.
70 However,
third states’ views on the matter ought to be taken into account. In line with the ILA,
a third State may hold that the consideration by the CLCS of a submission made by a State
party to the Convention may impair its rights existing outside the Convention. In such a case,
a third State can lodge a diplomatic protest with the State concerned or take any other steps at
its disposal to address the issue”
71
66 States must deposit charts “permanently describing the outer limits” of their continental shelf in
accordance with the recommendations before the UN Secretary-General and the Secretariat of ISA,
in order to fulfill the duty enshrined in Art. 76, paragraph 9, UNCLOS. As of the time of writing,
only seven states have deposited those charts.
67 Kunoy (2012), p. 109. In fact, for some authors, the Commission seems a key, but fragilized
institution in the delineation procedure, due to its limited mandate, as in Tassin (2013), p. 419.
68 In order for the Commission to avoid unwanted violations of its legal mandate, important parcel of
the law of the sea literature is of the view that the Commission should seek, when needed, “some
form of legal guidance, one of which could be the application of the legal services offered by the
Legal Counsel of the United Nations”. It is the case of Kunoy (2011), p. 334.
69 Scientific and Technical Guidelines of the Commission on the Limits off the Continental Shelf,
Doc. CLCS/11 of 13 May 1999, p. 12, para. 2.2.3.
70 See Serdy (2011), p. 379.
71 ILA (2004), p. 27.
60
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS
26 recommendations thus far.
66
In entertaining a submission, the CLCS may invoke powers that are not restricted
to technical prerogatives strictu sensu¸ but assume a legal nature.
67 In fact, the
Convention must make recommendations in accordance with rules inherent to
UNCLOS Art. 76, and this task unavoidably implies some form of treaty interpretation. In that process, the Commission has found itself in the position of having to
precise, from a scientific perspective, some concepts mentioned in the Convention,
such as “seafloor highs”, “submarine elevations”, “submarine ridges” and “oceanic
ridges”. To interpret the Convention is, therefore, not an excessive and illegal action
by the CLCS. However, every act of interpretation ought to be examined on an
ad-hoc basis, in order to prevent abuses, such as excessive hermeneutics of the
meaning of Art. 76 provisions or even the creation of new law.
68 That delicate task
has rendered heated debates within the Commission itself and has put its Commissioners in the spotlight, with several publications discussing the extent of the
Commission’s mandate to interpret the Convention.
In the delineation procedure, solely two parties are active: the submitting coastal
states and the CLCS. Basically, the work of the Commission is called for when a
coastal state triggers the procedure present in Art. 76 (4) to (10) UNCLOS.
69
Questions have arisen as to the participation of third states in the analysis of a
submission. Despite the current architecture lacking a legal tool allowing for protests
and interventions within the CLCS, third states may not be deprived of the right to
voice out concerns, provided that direct interests of theirs be at stake. As the ILA
rightly observed, states should not in principle object to each other’s submissions
because Art. 76 (10) UNCLOS is sufficient to protect their interests.
70 However,
third states’ views on the matter ought to be taken into account. In line with the ILA,
a third State may hold that the consideration by the CLCS of a submission made by a State
party to the Convention may impair its rights existing outside the Convention. In such a case,
a third State can lodge a diplomatic protest with the State concerned or take any other steps at
its disposal to address the issue”
71
66 States must deposit charts “permanently describing the outer limits” of their continental shelf in
accordance with the recommendations before the UN Secretary-General and the Secretariat of ISA,
in order to fulfill the duty enshrined in Art. 76, paragraph 9, UNCLOS. As of the time of writing,
only seven states have deposited those charts.
67 Kunoy (2012), p. 109. In fact, for some authors, the Commission seems a key, but fragilized
institution in the delineation procedure, due to its limited mandate, as in Tassin (2013), p. 419.
68 In order for the Commission to avoid unwanted violations of its legal mandate, important parcel of
the law of the sea literature is of the view that the Commission should seek, when needed, “some
form of legal guidance, one of which could be the application of the legal services offered by the
Legal Counsel of the United Nations”. It is the case of Kunoy (2011), p. 334.
69 Scientific and Technical Guidelines of the Commission on the Limits off the Continental Shelf,
Doc. CLCS/11 of 13 May 1999, p. 12, para. 2.2.3.
70 See Serdy (2011), p. 379.
71 ILA (2004), p. 27.
60
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS