77 (1) UNCLOS. In fact, to establish entitlement in those cases is a predominantly
legal task, not a technical one.
124
The Bay of Bengal case and ITLOS’ decision “has not diminished or otherwise
changed the role of the Commission in the process of the establishment by a coastal
State of its outer limits of the continental shelf”.
125 It is up to the state parties and to
the adjudicative body of the Convention, ITLOS, “to determine whether or not the
wording or application of wording in Art. 76 is subject to legal or scientific
interpretation”, whereas the mandate of the CLCS is extremely limited.
126
3.4.2 Delineation: Compulsory Judicial Accountability
of the Commission
Other sensitive issues surrounding ITLOS’ role in outer continental delineation
relate to: (i) the legality of applying UNCLOS compulsory settlement mechanism
to coastal states which have delineated their outer limits in disrespect to the Commission’s recommendations; and (ii) the judicial control of CLCS recommendations.
In other words, may ITLOS be provoked, in those situations, based on UNCLOS
Part XV, Section 2? Those are two different questions that merit analysis in the
coming paragraphs.
Firstly, on the international judicial intervention in cases of excessive outer
continental shelf limits, imagine the following hypothetical scenario: State A
declares its extended continental shelf limits beyond those recommended by the
CLCS. Sure, coastal states are the sole competent to delineate their outer limits, due
to sovereignty over the landmass and the inherent right exercised over the shelf.
However, those limits will only be final and binding, i.e. opposable to other states of
the international community, provided they implement Art. 76 criteria and follow the
CLCS recommendations to the letter.
127 A variation from those recommendations
would, thus, most likely amount to an illegal encroachment on the Area, thereby
curtailing the common heritage principle, a structural principle for the international
seabed regime, and violating the basic principle of non-appropriation of the international seabed.
128 In such a scenario, the rights of the international community as a
124 Bay of Bengal Case, para 413.
125 McDorman (2013), p. 102.
126 Schofield et al. sketched a similar argument, noting that the delimitation of the continental shelf
seaward of the 200-nm limit did not constitute an encroachment on the functions of the CLCS as
was without prejudice to the establishment of the outer limits of the continental shelf. See Schofield
et al. (2013), p. 372.
127 See ILA (2006), p. 28. That is also the view shared by Oystein Jensen, to whom there must be
identity between the outer limits established by the coastal state and the CLCS recommendations.
Thus, the state is left with no margin of discretion, if the fixed outer limits are to be “final and
binding”, and opposable to the international community. See Oystein (2013), p. 277.
128 Art. 137, paragraph 1, UNCLOS, on the legal status of the Area and its resources.
74
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS
legal task, not a technical one.
124
The Bay of Bengal case and ITLOS’ decision “has not diminished or otherwise
changed the role of the Commission in the process of the establishment by a coastal
State of its outer limits of the continental shelf”.
125 It is up to the state parties and to
the adjudicative body of the Convention, ITLOS, “to determine whether or not the
wording or application of wording in Art. 76 is subject to legal or scientific
interpretation”, whereas the mandate of the CLCS is extremely limited.
126
3.4.2 Delineation: Compulsory Judicial Accountability
of the Commission
Other sensitive issues surrounding ITLOS’ role in outer continental delineation
relate to: (i) the legality of applying UNCLOS compulsory settlement mechanism
to coastal states which have delineated their outer limits in disrespect to the Commission’s recommendations; and (ii) the judicial control of CLCS recommendations.
In other words, may ITLOS be provoked, in those situations, based on UNCLOS
Part XV, Section 2? Those are two different questions that merit analysis in the
coming paragraphs.
Firstly, on the international judicial intervention in cases of excessive outer
continental shelf limits, imagine the following hypothetical scenario: State A
declares its extended continental shelf limits beyond those recommended by the
CLCS. Sure, coastal states are the sole competent to delineate their outer limits, due
to sovereignty over the landmass and the inherent right exercised over the shelf.
However, those limits will only be final and binding, i.e. opposable to other states of
the international community, provided they implement Art. 76 criteria and follow the
CLCS recommendations to the letter.
127 A variation from those recommendations
would, thus, most likely amount to an illegal encroachment on the Area, thereby
curtailing the common heritage principle, a structural principle for the international
seabed regime, and violating the basic principle of non-appropriation of the international seabed.
128 In such a scenario, the rights of the international community as a
124 Bay of Bengal Case, para 413.
125 McDorman (2013), p. 102.
126 Schofield et al. sketched a similar argument, noting that the delimitation of the continental shelf
seaward of the 200-nm limit did not constitute an encroachment on the functions of the CLCS as
was without prejudice to the establishment of the outer limits of the continental shelf. See Schofield
et al. (2013), p. 372.
127 See ILA (2006), p. 28. That is also the view shared by Oystein Jensen, to whom there must be
identity between the outer limits established by the coastal state and the CLCS recommendations.
Thus, the state is left with no margin of discretion, if the fixed outer limits are to be “final and
binding”, and opposable to the international community. See Oystein (2013), p. 277.
128 Art. 137, paragraph 1, UNCLOS, on the legal status of the Area and its resources.
74
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS