to the dispute alone, thereby not binding third states.
119 Besides, the rights of the
international community (concerning the Area) are not involved in the dispute. The
Tribunal, in order to demonstrate that a judgement would not harm the rights of the
international community by encroaching upon the Area, analyzed both parties’
submissions to the CLCS. That analysis confirmed that the continental shelf beyond
200 nm under dispute between the parties rested far from the international seabed
area.
120
Now to the alleged conflict of competences between the Tribunal and the CLCS,
it should be noted that the Convention states nowhere that the delimitation of
maritime boundaries curbs the work of the Commission. In fact, UNCLOS contains
a carefully crafted institutional framework composed of ITLOS, CLCS and ISA that
can only implement the Convention via complementary work. Provisions for such
complementarity abound in the wording of the Convention. Besides, the Convention
clearly separates the activities of delineating the outer limits of the continental shelf,
under Art. 76, and delimiting the continental shelf, under Art. 83. A thorough
reading of Art. 76 (10) leads to the unequivocal conclusion that rules governing
the delineation of outer limits of the continental shelf shall not prejudice “the
question of the delimitation of the continental shelf between states opposite or
adjacent coasts”.
121
On the top of that, there can be no conflict between the ITLOS and the Commission in maritime boundary disputes, as the CLCS is blocked from making recommendations until the dispute has been judicially settled. In fact, the Commission has
halted the consideration of submissions by Myanmar and Bangladesh upon request
of the latter.
122 So, if the Tribunal waives for the Commission, the practical result is
that the Tribunal will not act at all, thereby creating “circularity” and an endless loop
in disputes over maritime boundaries beyond 200 nm.
123 The Tribunal has not only
the jurisdiction, but the obligation to adjudicate, leaving aside the question whether
it was appropriate to exercise jurisdiction or not. So, the ITLOS went on to determine
the entitlements of the parties to the continental shelf beyond 200 nm, a legal
construct that does not depend on any procedural requirements—Art.
119 Art. 33, paragraph 2, ITLOS Statute, on the right to intervene in cases of interpretation and
application.
120 ITLOS Dispute concerning delimitation of the maritime boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar) para 368.
121 In its judgement, the ITLOS found that “The absence of established outer limits of a maritime
zone does not preclude delimitation of that zone”. Id. para. 370.
122 Statement by the Chairman of the Commission on the progress of work in the Commission,
CLCS/72 of 16 September 2011, 7, para 22.
123 To decide that, the ITLOS had to confront a past decision by the ICJ, in the Nicaragua
v. Honduras case, 2009, in which the ICJ abstained from delimiting the outer continental shelf,
deferring to the CLCS. For McDorman (2013), p. 97, “what other courts and tribunals may have
done and said respecting the role of the Commission is confined to the facts of those cases”.
3.4 Delimiting and Delineating: The International Tribunal for the Law of the Sea
73
119 Besides, the rights of the
international community (concerning the Area) are not involved in the dispute. The
Tribunal, in order to demonstrate that a judgement would not harm the rights of the
international community by encroaching upon the Area, analyzed both parties’
submissions to the CLCS. That analysis confirmed that the continental shelf beyond
200 nm under dispute between the parties rested far from the international seabed
area.
120
Now to the alleged conflict of competences between the Tribunal and the CLCS,
it should be noted that the Convention states nowhere that the delimitation of
maritime boundaries curbs the work of the Commission. In fact, UNCLOS contains
a carefully crafted institutional framework composed of ITLOS, CLCS and ISA that
can only implement the Convention via complementary work. Provisions for such
complementarity abound in the wording of the Convention. Besides, the Convention
clearly separates the activities of delineating the outer limits of the continental shelf,
under Art. 76, and delimiting the continental shelf, under Art. 83. A thorough
reading of Art. 76 (10) leads to the unequivocal conclusion that rules governing
the delineation of outer limits of the continental shelf shall not prejudice “the
question of the delimitation of the continental shelf between states opposite or
adjacent coasts”.
121
On the top of that, there can be no conflict between the ITLOS and the Commission in maritime boundary disputes, as the CLCS is blocked from making recommendations until the dispute has been judicially settled. In fact, the Commission has
halted the consideration of submissions by Myanmar and Bangladesh upon request
of the latter.
122 So, if the Tribunal waives for the Commission, the practical result is
that the Tribunal will not act at all, thereby creating “circularity” and an endless loop
in disputes over maritime boundaries beyond 200 nm.
123 The Tribunal has not only
the jurisdiction, but the obligation to adjudicate, leaving aside the question whether
it was appropriate to exercise jurisdiction or not. So, the ITLOS went on to determine
the entitlements of the parties to the continental shelf beyond 200 nm, a legal
construct that does not depend on any procedural requirements—Art.
119 Art. 33, paragraph 2, ITLOS Statute, on the right to intervene in cases of interpretation and
application.
120 ITLOS Dispute concerning delimitation of the maritime boundary between Bangladesh and
Myanmar in the Bay of Bengal (Bangladesh/Myanmar) para 368.
121 In its judgement, the ITLOS found that “The absence of established outer limits of a maritime
zone does not preclude delimitation of that zone”. Id. para. 370.
122 Statement by the Chairman of the Commission on the progress of work in the Commission,
CLCS/72 of 16 September 2011, 7, para 22.
123 To decide that, the ITLOS had to confront a past decision by the ICJ, in the Nicaragua
v. Honduras case, 2009, in which the ICJ abstained from delimiting the outer continental shelf,
deferring to the CLCS. For McDorman (2013), p. 97, “what other courts and tribunals may have
done and said respecting the role of the Commission is confined to the facts of those cases”.
3.4 Delimiting and Delineating: The International Tribunal for the Law of the Sea
73