3.4 Delimiting and Delineating: The International Tribunal
for the Law of the Sea
Flawed as it may be, the CLCS is certainly a key institution in outer continental shelf
delineation processes. Yet, it is not the only one. The question now is to understand
what the role of other UNCLOS-based bodies is, in the delineation and delimitation
of continental shelves beyond 200 nm, i.e. whether the ITLOS (or arbitral tribunals)
and the ISA have a say in such processes. Lawyers will boast that the Tribunal,
empowered as it is to settle international UNCLOS-related controversies, may
entertain disputes regarding the delimitation of adjacent or opposing outer continental shelves.
98 However, does the Tribunal have jurisdiction to assess whether a
particular coastal state has delineated its outer limits in full compliance with CLCS
recommendations? More, does ITLOS have jurisdiction to judge the validity of those
recommendations, if proven that Art. 76 of the Convention was disrespected?
Finally, it should be clarified what role remains to the ISA in outer continental
shelf questions, given the intersection between the rules applicable to the outer
continental shelf and the Area.
Starting with international tribunals and arbitration courts, it is not novel that they
enjoy jurisdiction to analyze and decide on a concrete case with binding force. Since
recently, international law has been conferring on states freedom to choose among
several dispute settlement mechanisms, including more recently the avenue of
compulsory resolution procedures.
99 International courts and tribunals, previously
unknown to mankind, quickly take the spotlight in the twentieth century, the reason
for that being their strength to advance international law by filling in legal lacunae
and dispersing ambiguities—combler les lacunes et éclaicir les ambiguités.
100 The
fundament of international adjudication, on a quick note, dates back to the legal
contributions by followers of Wilsonian and Lauterpachtian traditions to international law.
101
98 Much could be written about the possibility given to states by international law to delimit
opposing maritime boundaries beyond 200 nm through bi- or multilateral agreements. Thus far,
15 such agreements have been concluded, both before and after the CLCS had made recommendations on the outer limits of the continental shelf of one of the parties to those agreements.
However, it escapes the purpose of this work to dive into this option, as it would offer limited
contribution to the book’s main arguments, on the environmental jurisdiction of coastal states on the
outer continental shelf. For a more detailed analysis of those treaties, see Magnússon (2017), p. 208.
99 Regarding compulsory jurisdiction of international tribunals, a pertinent case is the ITLOS and
the Chamber of Marine Funds, which were recognized compulsory jurisdiction over specific issues
related to the Law of the Sea, as described in UNCLOS, Part XV, Section 1.
100 Ford (1994), p. 35.
101 It is not meant here that all international lawyers share the same premise that international
tribunals advance international law or are key to the functional of the international legal system. A
critical school would dismiss such relevance, due to the fetishism or even messianism inherent to
the judicial activity. For more on the criticisms to judicial fetishism, see D’Aspremont (2015),
pp. 1–6.
68
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS
for the Law of the Sea
Flawed as it may be, the CLCS is certainly a key institution in outer continental shelf
delineation processes. Yet, it is not the only one. The question now is to understand
what the role of other UNCLOS-based bodies is, in the delineation and delimitation
of continental shelves beyond 200 nm, i.e. whether the ITLOS (or arbitral tribunals)
and the ISA have a say in such processes. Lawyers will boast that the Tribunal,
empowered as it is to settle international UNCLOS-related controversies, may
entertain disputes regarding the delimitation of adjacent or opposing outer continental shelves.
98 However, does the Tribunal have jurisdiction to assess whether a
particular coastal state has delineated its outer limits in full compliance with CLCS
recommendations? More, does ITLOS have jurisdiction to judge the validity of those
recommendations, if proven that Art. 76 of the Convention was disrespected?
Finally, it should be clarified what role remains to the ISA in outer continental
shelf questions, given the intersection between the rules applicable to the outer
continental shelf and the Area.
Starting with international tribunals and arbitration courts, it is not novel that they
enjoy jurisdiction to analyze and decide on a concrete case with binding force. Since
recently, international law has been conferring on states freedom to choose among
several dispute settlement mechanisms, including more recently the avenue of
compulsory resolution procedures.
99 International courts and tribunals, previously
unknown to mankind, quickly take the spotlight in the twentieth century, the reason
for that being their strength to advance international law by filling in legal lacunae
and dispersing ambiguities—combler les lacunes et éclaicir les ambiguités.
100 The
fundament of international adjudication, on a quick note, dates back to the legal
contributions by followers of Wilsonian and Lauterpachtian traditions to international law.
101
98 Much could be written about the possibility given to states by international law to delimit
opposing maritime boundaries beyond 200 nm through bi- or multilateral agreements. Thus far,
15 such agreements have been concluded, both before and after the CLCS had made recommendations on the outer limits of the continental shelf of one of the parties to those agreements.
However, it escapes the purpose of this work to dive into this option, as it would offer limited
contribution to the book’s main arguments, on the environmental jurisdiction of coastal states on the
outer continental shelf. For a more detailed analysis of those treaties, see Magnússon (2017), p. 208.
99 Regarding compulsory jurisdiction of international tribunals, a pertinent case is the ITLOS and
the Chamber of Marine Funds, which were recognized compulsory jurisdiction over specific issues
related to the Law of the Sea, as described in UNCLOS, Part XV, Section 1.
100 Ford (1994), p. 35.
101 It is not meant here that all international lawyers share the same premise that international
tribunals advance international law or are key to the functional of the international legal system. A
critical school would dismiss such relevance, due to the fetishism or even messianism inherent to
the judicial activity. For more on the criticisms to judicial fetishism, see D’Aspremont (2015),
pp. 1–6.
68
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS