recommendations.
93 Such modus operandi is advisable, as it would enable coastal
states an improved understanding of Commission’s practice, pave the way for future
submissions, and adjust state’s expectations.
Nonetheless, a strict reading of the Convention will reveal that the coastal state
has the final word regarding publicity. Art. 6, paragraph 3, Annex II UNCLOS
requires the recommendations be submitted in writing to the coastal state and to the
Secretary-General of the United Nations, but Art. 76 (9) UNCLOS demands charts
only (with the outer limits adopted in accordance with the recommendations) to be
given publicity by the UN Secretary-General. In fact, “desirable though transparency
is, there is nothing in LOSC [Law of the Sea Convention] Art. 76 that requires States
to make recommendations public”.
94 A submitting state may prioritize the confidentiality of recommendations to the detriment of a more transparent and legitimate
procedure before the international community.
A balance to the power of coastal states is struck with the prerogative of third
states to obtain additional information, in order to confirm that the outer limits are
established on the basis of the CLCS recommendations and in consistency with Art.
76. Thus, one possible interpretation would say that coastal states which have made a
submission may be required to allow access to relevant information concerning its
proposed outer limits. Such conclusion follows from Rule 54, paragraph 3, which
stipulates that the CLCS shall give due publicity to the summary of recommendations adopted by the sub-commission in charge, taking into account the confidentiality of certain data submitted by the coastal state.
95 According to that rule,
the recommendations prepared by the sub-commission shall include a summary thereof, and
such summary shall not contain information which might be of a confidential nature and/or
which might violate the proprietary rights of the coastal State over the data and information
provided in the submission (emphasis added).
At the end of the day, the Commission accepts it is not about disclosing confidential information on resource potential of a given state, but making public the
rationale followed by the CLCS members, be the recommendations favorable to the
submitting state or not.
A suggestion to overcome the transparency issue would be, thus, to require states
to disclose fully and publicly the rationale and the information from which their
proposed outer limits are derived. Here, the delineation process could simultaneously determine the world’s maritime boundaries and advance scientific knowledge of the ocean floor.
96 Such quest for transparency, however, should not come at
93 That is also the opinion of Judge Vladimir Golitsyn, to whom “the Commission should make its
reasoning accessible to the international community” after every recommendation. See Golitsyn
(2009), p. 408.
94 Serdy (2011), p. 381.
95 Rules of Procedure, CLCS, rule 54, paragraph 3.
96 Such optimism clashes, nonetheless, with a realistic view of international relations. Firstly, the
main reasons why states spend hundreds of millions of dollars on data collection missions that
support official submissions are of economic and geopolitical natures. There is no reason to believe
66
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS
93 Such modus operandi is advisable, as it would enable coastal
states an improved understanding of Commission’s practice, pave the way for future
submissions, and adjust state’s expectations.
Nonetheless, a strict reading of the Convention will reveal that the coastal state
has the final word regarding publicity. Art. 6, paragraph 3, Annex II UNCLOS
requires the recommendations be submitted in writing to the coastal state and to the
Secretary-General of the United Nations, but Art. 76 (9) UNCLOS demands charts
only (with the outer limits adopted in accordance with the recommendations) to be
given publicity by the UN Secretary-General. In fact, “desirable though transparency
is, there is nothing in LOSC [Law of the Sea Convention] Art. 76 that requires States
to make recommendations public”.
94 A submitting state may prioritize the confidentiality of recommendations to the detriment of a more transparent and legitimate
procedure before the international community.
A balance to the power of coastal states is struck with the prerogative of third
states to obtain additional information, in order to confirm that the outer limits are
established on the basis of the CLCS recommendations and in consistency with Art.
76. Thus, one possible interpretation would say that coastal states which have made a
submission may be required to allow access to relevant information concerning its
proposed outer limits. Such conclusion follows from Rule 54, paragraph 3, which
stipulates that the CLCS shall give due publicity to the summary of recommendations adopted by the sub-commission in charge, taking into account the confidentiality of certain data submitted by the coastal state.
95 According to that rule,
the recommendations prepared by the sub-commission shall include a summary thereof, and
such summary shall not contain information which might be of a confidential nature and/or
which might violate the proprietary rights of the coastal State over the data and information
provided in the submission (emphasis added).
At the end of the day, the Commission accepts it is not about disclosing confidential information on resource potential of a given state, but making public the
rationale followed by the CLCS members, be the recommendations favorable to the
submitting state or not.
A suggestion to overcome the transparency issue would be, thus, to require states
to disclose fully and publicly the rationale and the information from which their
proposed outer limits are derived. Here, the delineation process could simultaneously determine the world’s maritime boundaries and advance scientific knowledge of the ocean floor.
96 Such quest for transparency, however, should not come at
93 That is also the opinion of Judge Vladimir Golitsyn, to whom “the Commission should make its
reasoning accessible to the international community” after every recommendation. See Golitsyn
(2009), p. 408.
94 Serdy (2011), p. 381.
95 Rules of Procedure, CLCS, rule 54, paragraph 3.
96 Such optimism clashes, nonetheless, with a realistic view of international relations. Firstly, the
main reasons why states spend hundreds of millions of dollars on data collection missions that
support official submissions are of economic and geopolitical natures. There is no reason to believe
66
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS