shelf beyond 200 nm. Myanmar contested such jurisdiction under the argument that,
although ITLOS could have jurisdiction, as a matter of principle, to delimit the
continental shelf beyond 200 nm, it would not be appropriate to exercise jurisdiction
over that specific case.
114 Bangladesh contended that UNCLOS made no distinction
between inner and outer continental shelf, what empowered the judges to decide
upon the entirety of the continental shelf, as allowed by Art. 83 of the Convention.
115
Amongst the claims contrary to ITLOS jurisdiction, two were particularly
eye-catching. Firstly, that delimiting the outer continental shelf could encroach
upon the Area and, therefore, harm rights of the international community. Any
decisions by the Tribunal “might prejudice the rights of third parties and also
those relating to the international seabed area”.
116 Secondly, that a judicial verdict
would infringe upon the preeminence of the CLCS as the most appropriate locus for
the determination of the outer limits of continental shelves. Given that the Commission’s recommendations are a prerequisite for legal and binding outer limits, no
international court or tribunal could determine a boundary line without knowing the
precise trajectory of those outer limits.
Some reflections on the abovementioned arguments are called for. The interpretation of Art. 288 (1) UNCLOS, combined with Art. 21 of the Tribunal’s Statute,
leaves no controversy as to the fact that “the jurisdiction of the Tribunal comprises
all disputes and all application submitted to it in accordance with the Convention”
(emphasis added).
117 If a dispute relates to the interpretation and application of
UNCLOS provisions, as is the case with Art. 76 and other pertinent provisions
governing the continental shelf regime, it must be concluded that the ITLOS has
jurisdiction to entertain such dispute.
In addition to that, ITLOS found jurisdiction to delimit the continental shelf in its
entirety, as the Convention does not divide between inner and outer continental
shelf, thereby giving reason to Bangladesh. Crystal clear jurisprudence on the
singularity of continental shelf was set by the Arbitral Tribunal in the Arbitration
between Barbados and Trinidad and Tobago, which stated that “there is in law only a
single ‘continental shelf’ rather than an inner continental shelf and a separate
extended or outer continental shelf”.
118
Contesting the argument that potential overlapping claims by third states would
deprive the Tribunal’s jurisdiction was the easiest part. It is not only a wellestablished principle of international law, but it is also inscribed into the Tribunal’s
Statutes, Art. 33, that an international judgement shall produce effects to the parties
114 ITLOS Dispute concerning delimitation of the maritime boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar) para 45.
115 Id. para 350.
116 Id. para 344.
117 Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in
the Bay of Bengal (Bangladesh/Myanmar) para 48.
118 PCA Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the
delimitation of the exclusive economic zone and the continental shelf between them, Vol. XXVII,
11 April 2006, 165, para 213.
72
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS
although ITLOS could have jurisdiction, as a matter of principle, to delimit the
continental shelf beyond 200 nm, it would not be appropriate to exercise jurisdiction
over that specific case.
114 Bangladesh contended that UNCLOS made no distinction
between inner and outer continental shelf, what empowered the judges to decide
upon the entirety of the continental shelf, as allowed by Art. 83 of the Convention.
115
Amongst the claims contrary to ITLOS jurisdiction, two were particularly
eye-catching. Firstly, that delimiting the outer continental shelf could encroach
upon the Area and, therefore, harm rights of the international community. Any
decisions by the Tribunal “might prejudice the rights of third parties and also
those relating to the international seabed area”.
116 Secondly, that a judicial verdict
would infringe upon the preeminence of the CLCS as the most appropriate locus for
the determination of the outer limits of continental shelves. Given that the Commission’s recommendations are a prerequisite for legal and binding outer limits, no
international court or tribunal could determine a boundary line without knowing the
precise trajectory of those outer limits.
Some reflections on the abovementioned arguments are called for. The interpretation of Art. 288 (1) UNCLOS, combined with Art. 21 of the Tribunal’s Statute,
leaves no controversy as to the fact that “the jurisdiction of the Tribunal comprises
all disputes and all application submitted to it in accordance with the Convention”
(emphasis added).
117 If a dispute relates to the interpretation and application of
UNCLOS provisions, as is the case with Art. 76 and other pertinent provisions
governing the continental shelf regime, it must be concluded that the ITLOS has
jurisdiction to entertain such dispute.
In addition to that, ITLOS found jurisdiction to delimit the continental shelf in its
entirety, as the Convention does not divide between inner and outer continental
shelf, thereby giving reason to Bangladesh. Crystal clear jurisprudence on the
singularity of continental shelf was set by the Arbitral Tribunal in the Arbitration
between Barbados and Trinidad and Tobago, which stated that “there is in law only a
single ‘continental shelf’ rather than an inner continental shelf and a separate
extended or outer continental shelf”.
118
Contesting the argument that potential overlapping claims by third states would
deprive the Tribunal’s jurisdiction was the easiest part. It is not only a wellestablished principle of international law, but it is also inscribed into the Tribunal’s
Statutes, Art. 33, that an international judgement shall produce effects to the parties
114 ITLOS Dispute concerning delimitation of the maritime boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar) para 45.
115 Id. para 350.
116 Id. para 344.
117 Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in
the Bay of Bengal (Bangladesh/Myanmar) para 48.
118 PCA Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the
delimitation of the exclusive economic zone and the continental shelf between them, Vol. XXVII,
11 April 2006, 165, para 213.
72
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS