Commission’s mandate. Secondly, no interpretation may amplify obligations to
coastal states beyond those assigned by UNCLOS. Thirdly, such legal competence
of the Commission does not exclude the competence of state parties to interpret the
Convention themselves. In other words, the CLCS should be open for reasonable
interpretations of Art. 76 made by coastal states in their submissions.
78 In cases
where the Commission’s mandate be unclear, states must refer to the firm principle
of international law that only a tribunal of international law is deemed to know what
this law is.
79 Although it seems clear to common sense, it is never too much to
remind that the Commission is not a tribunal.
A rather critical view of the Commission’s performance of this competence is
formulated by Andrew Serdy, to whom the commissioners have shown a “disturbing
propensity to legislate” through the introduction of new requirements for states,
which are either not supported by Art. 76, or by qualifying rights specified in Art.
76.
80 That would amount to a violation of the Commission’s mandate, the result of
which would be to deprive states of areas of legal continental shelf to which a
reasonable interpretation of Art. 76 entitles them. Similarly, ITLOS Judge Vladimir
Golitsyn denies, in principle, an interpretative mandate to the Commission. For the
Judge, interpretation of Art. 76 is an exclusive prerogative of states parties to
UNCLOS and competent international adjudicative bodies, amongst which
ITLOS.
81
Another challenge to the work of the Commission has been the constant activation of the clause of ongoing maritime delimitation dispute within submissions, a
measure that halts indefinitely the Commission. According to the Virginia Commentaries, the Commission “is not to function in determining, or to influence
negotiations on, the continental shelf boundary between states with overlapping
claims (assuming the boundary in question is beyond 200 nautical miles)”.
82 However, difficulty in defining the term “dispute” has impeded the Commission’s work
in a number of occasions. There is no word on Annex I of the Rules of Procedure
hinting how the CLCS shall proceed when states differ over the question whether a
dispute in relation to a submission exists. It seems to flow logically from the wording
of the relevant provisions that the CLCS must conduct an assessment on the prima
facie existence of a dispute—low threshold. If it finds that a dispute exists, paragraph
5 of Annex I to the CLCS Rules of Procedure provides that the Commission only
will examine a submission in an area under dispute with the prior consent of all the
78 ILA (2004), p. 6.
79 PCIJ Brazilian Loans Case, Judgement, Rep. 1929, Ser. A, 124.
80 For instance, the Commission has shown a tendency to overlook the depth constraint in favor of
that based on distance, not only in the media but also surprisingly in academic writing. See Serdy
(2011), p. 356.
81 Golitsyn (2009), p. 406.
82 Nordquist et al. (2002), p. 1017.
3.3 Delineating: The Commission on the Limits of the Continental Shelf
63
coastal states beyond those assigned by UNCLOS. Thirdly, such legal competence
of the Commission does not exclude the competence of state parties to interpret the
Convention themselves. In other words, the CLCS should be open for reasonable
interpretations of Art. 76 made by coastal states in their submissions.
78 In cases
where the Commission’s mandate be unclear, states must refer to the firm principle
of international law that only a tribunal of international law is deemed to know what
this law is.
79 Although it seems clear to common sense, it is never too much to
remind that the Commission is not a tribunal.
A rather critical view of the Commission’s performance of this competence is
formulated by Andrew Serdy, to whom the commissioners have shown a “disturbing
propensity to legislate” through the introduction of new requirements for states,
which are either not supported by Art. 76, or by qualifying rights specified in Art.
76.
80 That would amount to a violation of the Commission’s mandate, the result of
which would be to deprive states of areas of legal continental shelf to which a
reasonable interpretation of Art. 76 entitles them. Similarly, ITLOS Judge Vladimir
Golitsyn denies, in principle, an interpretative mandate to the Commission. For the
Judge, interpretation of Art. 76 is an exclusive prerogative of states parties to
UNCLOS and competent international adjudicative bodies, amongst which
ITLOS.
81
Another challenge to the work of the Commission has been the constant activation of the clause of ongoing maritime delimitation dispute within submissions, a
measure that halts indefinitely the Commission. According to the Virginia Commentaries, the Commission “is not to function in determining, or to influence
negotiations on, the continental shelf boundary between states with overlapping
claims (assuming the boundary in question is beyond 200 nautical miles)”.
82 However, difficulty in defining the term “dispute” has impeded the Commission’s work
in a number of occasions. There is no word on Annex I of the Rules of Procedure
hinting how the CLCS shall proceed when states differ over the question whether a
dispute in relation to a submission exists. It seems to flow logically from the wording
of the relevant provisions that the CLCS must conduct an assessment on the prima
facie existence of a dispute—low threshold. If it finds that a dispute exists, paragraph
5 of Annex I to the CLCS Rules of Procedure provides that the Commission only
will examine a submission in an area under dispute with the prior consent of all the
78 ILA (2004), p. 6.
79 PCIJ Brazilian Loans Case, Judgement, Rep. 1929, Ser. A, 124.
80 For instance, the Commission has shown a tendency to overlook the depth constraint in favor of
that based on distance, not only in the media but also surprisingly in academic writing. See Serdy
(2011), p. 356.
81 Golitsyn (2009), p. 406.
82 Nordquist et al. (2002), p. 1017.
3.3 Delineating: The Commission on the Limits of the Continental Shelf
63