International law remains rooted in state consent as the basis for its existence.
After all, states are the main subjects creating organizations.
75 And even the organizations mandated to participate in the creation of other organization, e.g. the
European Community as a member of the Helsinki Convention, are themselves the
fruit of state consent. Strains between state sovereignty and international institutions
are inherent given the current legal framework upon which international law is
based, particularly so in the case of the law of the sea, where institutions such as
the CLCS or the ISA stand out for being technical bodies in a political world.
76 One
could not expect the relationship between those organizations and states to be
entirely peaceful and devoid of noise.
The continental shelf, although originally a physical concept, is principally a legal
or artificial concept that developed to suit the interests of sovereign states. The
350-mile limit does not correspond on a one-to-one basis to the geological nature of
the continental shelf. As such, the CLCS explores permanently new ground, as every
submission presents a plethora of possible approaches to terms enshrined in Art. 76.
In a sense, only by enabling a flexible interpretation of rules and regulations, in full
respect of both the letter and the spirit of the Convention, are international organizations to give a long life to ambitious and pioneers creations such as the outer
continental shelf.
That is not to say that tensions are inherently vicious for the development of
international law. In fact, practice of international organizations has repeatedly
shown that the exigencies of real life may create alternative implementation routes
where none existed before, ultimately contributing to the overall implementation of
international law. In other words, el camino se hace caminando, and that is what the
Commission has done in the past, for instance, when it adopted its Rules of Procedures, namely Rule 46,
77 which interprets UNCLOS provisions requiring the
Commission’s actions not to prejudice boundary delimitations between states.
A reasonable solution to the question of how far the Commission may interpret
the Convention is to limit the hermeneutic maneuver room of its members,
subjecting the act of interpreting to the fulfillment of certain requirements. First of
all, the hermeneutic activity may only relate to the understanding of Art. 76 and other
pertinent articles of the Convention indispensable for the exercise of the
75 The clash between the international organization and its members mirrors ultimately the dichotomy between state sovereignty and community interests in international law, if one takes IOs as
representatives of those interests. Up to now, the existence of international organizations has altered
the relevance of state sovereignty in international law, but not vanished it. See Klabbers (2009), p. 5.
76 McDorman reaches the conclusion that the CLCS is a technical body in a political world, aiding
the act of delineating boundaries, i.e. an eminently political matter. That author is of the view that
the CLCS role in the delineation process could become more significant, not via adoption of stricter
proof standards, but via flexibility in the acceptance of reasonable and credible data—what the
author calls the prevalence of the “politician” facet of the Commission over its “scientist” one. See
McDorman (2002), p. 324.
77 Rule of Procedure no. 46, on the “submissions in case of a dispute between States with opposite or
adjacent coasts or in other cases of unresolved land or maritime disputes”.
62
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS
After all, states are the main subjects creating organizations.
75 And even the organizations mandated to participate in the creation of other organization, e.g. the
European Community as a member of the Helsinki Convention, are themselves the
fruit of state consent. Strains between state sovereignty and international institutions
are inherent given the current legal framework upon which international law is
based, particularly so in the case of the law of the sea, where institutions such as
the CLCS or the ISA stand out for being technical bodies in a political world.
76 One
could not expect the relationship between those organizations and states to be
entirely peaceful and devoid of noise.
The continental shelf, although originally a physical concept, is principally a legal
or artificial concept that developed to suit the interests of sovereign states. The
350-mile limit does not correspond on a one-to-one basis to the geological nature of
the continental shelf. As such, the CLCS explores permanently new ground, as every
submission presents a plethora of possible approaches to terms enshrined in Art. 76.
In a sense, only by enabling a flexible interpretation of rules and regulations, in full
respect of both the letter and the spirit of the Convention, are international organizations to give a long life to ambitious and pioneers creations such as the outer
continental shelf.
That is not to say that tensions are inherently vicious for the development of
international law. In fact, practice of international organizations has repeatedly
shown that the exigencies of real life may create alternative implementation routes
where none existed before, ultimately contributing to the overall implementation of
international law. In other words, el camino se hace caminando, and that is what the
Commission has done in the past, for instance, when it adopted its Rules of Procedures, namely Rule 46,
77 which interprets UNCLOS provisions requiring the
Commission’s actions not to prejudice boundary delimitations between states.
A reasonable solution to the question of how far the Commission may interpret
the Convention is to limit the hermeneutic maneuver room of its members,
subjecting the act of interpreting to the fulfillment of certain requirements. First of
all, the hermeneutic activity may only relate to the understanding of Art. 76 and other
pertinent articles of the Convention indispensable for the exercise of the
75 The clash between the international organization and its members mirrors ultimately the dichotomy between state sovereignty and community interests in international law, if one takes IOs as
representatives of those interests. Up to now, the existence of international organizations has altered
the relevance of state sovereignty in international law, but not vanished it. See Klabbers (2009), p. 5.
76 McDorman reaches the conclusion that the CLCS is a technical body in a political world, aiding
the act of delineating boundaries, i.e. an eminently political matter. That author is of the view that
the CLCS role in the delineation process could become more significant, not via adoption of stricter
proof standards, but via flexibility in the acceptance of reasonable and credible data—what the
author calls the prevalence of the “politician” facet of the Commission over its “scientist” one. See
McDorman (2002), p. 324.
77 Rule of Procedure no. 46, on the “submissions in case of a dispute between States with opposite or
adjacent coasts or in other cases of unresolved land or maritime disputes”.
62
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS