States that are parties to such a dispute. The wording is clear, a positivist would have
to bend to that wording, or call for an amendment to the Rules of Procedure.
83
Examples are the cases of South West Africa and the case between Palau and
Philippines, where a mere objection was depicted as a dispute. The fear by CLCS
members rests on a “serious misunderstanding of the non-prejudice clauses in LOSC
Art. 76, paragraph 10 and Annex II, Art. 9”. Provided the CLCS does not stray
beyond its technical task, by definition nothing it does is capable of bringing about
such prejudice [of influencing ongoing delimitation disputes].
84 Here, the Commission has shown what authors have termed a “counterproductive oversensitivity to
disputes”,
85 that is, it has repeatedly granted third states veto power over the
examination of a submission by simply notifying a dispute. It would be more
reasonable for the Commission to consider only opposing claims of an advanced
nature as “disputes”, instead of mere overlapping claims for areas where no bilateral
negotiations have started. A similar view was espoused some years ago by the ILA,
according to which Art. 76 (10) UNCLOS represented a “safeguarding clause”,
which impeded overlapping claims to be invoked by a state as an obstacle to the
functioning of the Commission with respect to a submission on the disputed area.
86
3.3.2.2 Composition and Integrity of CLCS Members
Already during UNCLOS’ negotiations, there were fears that the provisions determining the CLCS composition were unsatisfactory in that they based election to the
commission entirely on the principle of equitable geographical distribution.
87 That
would not preclude the possibility of the Commission being dominated by nationals
of the broad-margin states and those sympathetic to their views. Hence, a major
concern was to have nationals of relevant interest groups should be fairly represented
in the Commission, so as to ensure that its integrity was not open to question.
88
Twenty years into the creation of the Commission, one could fairly say that the
worries as to legitimacy of its composition have partially materialized. On the fears
of a Commission dominated by experts of industrialized states, it is certainly not the
83 Alex Elferink and Constance Johnson are of the view that the CLCS Rules should not be read in
isolation from the relevant UNCLOS provisions, a combined reading of which would lead to the
conclusion that the Commission needs not to halt considerations of a submission of a state that
raises issues of delimitation of the continental shelf. The consideration by the Commission does not
prejudice the rights of coastal states with overlapping claims over the continental shelf. See Oude
Elferink and Johnson (2006), p. 485.
84 Serdy (2011), p. 364.
85 Id. 362.
86 ILA (2004), p. 27.
87 Carrera (2017).
88 Such fears were espoused by Singapore. See A/CONF.62/SR.125 125th Plenary meeting Extract
from the Official Records of the Third United Nations Conference on the Law of the Sea, Volume
XIII, para. 3.
64
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS
to bend to that wording, or call for an amendment to the Rules of Procedure.
83
Examples are the cases of South West Africa and the case between Palau and
Philippines, where a mere objection was depicted as a dispute. The fear by CLCS
members rests on a “serious misunderstanding of the non-prejudice clauses in LOSC
Art. 76, paragraph 10 and Annex II, Art. 9”. Provided the CLCS does not stray
beyond its technical task, by definition nothing it does is capable of bringing about
such prejudice [of influencing ongoing delimitation disputes].
84 Here, the Commission has shown what authors have termed a “counterproductive oversensitivity to
disputes”,
85 that is, it has repeatedly granted third states veto power over the
examination of a submission by simply notifying a dispute. It would be more
reasonable for the Commission to consider only opposing claims of an advanced
nature as “disputes”, instead of mere overlapping claims for areas where no bilateral
negotiations have started. A similar view was espoused some years ago by the ILA,
according to which Art. 76 (10) UNCLOS represented a “safeguarding clause”,
which impeded overlapping claims to be invoked by a state as an obstacle to the
functioning of the Commission with respect to a submission on the disputed area.
86
3.3.2.2 Composition and Integrity of CLCS Members
Already during UNCLOS’ negotiations, there were fears that the provisions determining the CLCS composition were unsatisfactory in that they based election to the
commission entirely on the principle of equitable geographical distribution.
87 That
would not preclude the possibility of the Commission being dominated by nationals
of the broad-margin states and those sympathetic to their views. Hence, a major
concern was to have nationals of relevant interest groups should be fairly represented
in the Commission, so as to ensure that its integrity was not open to question.
88
Twenty years into the creation of the Commission, one could fairly say that the
worries as to legitimacy of its composition have partially materialized. On the fears
of a Commission dominated by experts of industrialized states, it is certainly not the
83 Alex Elferink and Constance Johnson are of the view that the CLCS Rules should not be read in
isolation from the relevant UNCLOS provisions, a combined reading of which would lead to the
conclusion that the Commission needs not to halt considerations of a submission of a state that
raises issues of delimitation of the continental shelf. The consideration by the Commission does not
prejudice the rights of coastal states with overlapping claims over the continental shelf. See Oude
Elferink and Johnson (2006), p. 485.
84 Serdy (2011), p. 364.
85 Id. 362.
86 ILA (2004), p. 27.
87 Carrera (2017).
88 Such fears were espoused by Singapore. See A/CONF.62/SR.125 125th Plenary meeting Extract
from the Official Records of the Third United Nations Conference on the Law of the Sea, Volume
XIII, para. 3.
64
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS