whole—addressee of the res communis beyond national jurisdiction—would be
under siege, a situation that would legitimize each and every state party to the
Convention to seek judicial relief in face of such a breach to the regime of the Area.
Hence, in that scenario, a State B is entitled to take legal action, due to its interest
in the case, an interest to be found in the illegal advancement of State A over the
Area. The expected judgement would bear consequences only for the parties to the
dispute, which would potentially include the obligation to make a revised or new
submission to the CLCS, in full consistency with the judgment. It would not be too
bold to assert that the violating state may be required to compensate the international
community for eventual damages caused to what was actually the Area, and not the
state’s outer continental shelf.
129
Now, even if the coastal state followed the Commission’s recommendations, the
delineation of the outer limits of the continental shelf by a coastal state is open to
compulsory adjudication.
130 It is so due to the fact that all unilateral acts of states
may be challenged by third states, no distinction looming over outer limits’ delineation. In fact, Art. 76 (8) of the Convention does not exclude recourse to dispute
settlement regarding the delineation procedure, and according to the principle of
legality in international (criminal) law, if a behavior is not forbidden, then it is
allowed—nullum crimen sine lege. Assuming that the parties to UNCLOS have
adopted the ITLOS as their default litigation forum, the dispute may be unilaterally
brought to that Tribunal.
131 Such a view has been endorsed and further developed by
the ILA, which held that “a dispute over the question whether the outer limit has
been established ‘on the basis’ of the recommendations of the CLCS can be settled in
accordance with Section 2 of Part XV of the Convention”.
132 At the end of the day, it
is not about creating a hierarchy between UNCLOS-based institutions, but
safeguarding the right of sovereign states to seek relief for an alleged violation of
law before an international adjudicating body.
133
Secondly, Tribunal may be required to exercise judicial control over the actions
of the Commission, a mandate which is not entirely clear from UNCLOS provisions.
134 It would be the case of State B challenging the recommendations of the
129 Details on this position would be too complex to handle within this section and would, besides,
escape the main purpose of the work.
130 Of the same view, Marotta Rangel, to whom “judicial and arbitral control are admissible even
after the Commission’s recommendation”. See Rangel (2006), p. 362.
131 If the parties opted for different mechanisms, the legal dispute may be submitted unilaterally to
arbitration. See Wolfrum (2008), p. 9.
132 ILA (2002), p. 6.
133 In the view of Rüdiger Wolfrum, ITLOS judgement in such a case could even strengthen the
Commission’s recommendations, instead of crippling the authority of the Commission. See
Wolfrum (2008), p. 12.
134 Authors such as Marotta Rangel point out the need for “judicial control over the Commission’s
actions”, based on the obligation falling upon the Commission to make recommendations in
accordance with UNCLOS Art. 76. The ITLOS is the body responsible for interpreting and settling
disputes related to the enforcement of the Convention. See Rangel (2006), p. 359.
3.4 Delimiting and Delineating: The International Tribunal for the Law of the Sea
75
under siege, a situation that would legitimize each and every state party to the
Convention to seek judicial relief in face of such a breach to the regime of the Area.
Hence, in that scenario, a State B is entitled to take legal action, due to its interest
in the case, an interest to be found in the illegal advancement of State A over the
Area. The expected judgement would bear consequences only for the parties to the
dispute, which would potentially include the obligation to make a revised or new
submission to the CLCS, in full consistency with the judgment. It would not be too
bold to assert that the violating state may be required to compensate the international
community for eventual damages caused to what was actually the Area, and not the
state’s outer continental shelf.
129
Now, even if the coastal state followed the Commission’s recommendations, the
delineation of the outer limits of the continental shelf by a coastal state is open to
compulsory adjudication.
130 It is so due to the fact that all unilateral acts of states
may be challenged by third states, no distinction looming over outer limits’ delineation. In fact, Art. 76 (8) of the Convention does not exclude recourse to dispute
settlement regarding the delineation procedure, and according to the principle of
legality in international (criminal) law, if a behavior is not forbidden, then it is
allowed—nullum crimen sine lege. Assuming that the parties to UNCLOS have
adopted the ITLOS as their default litigation forum, the dispute may be unilaterally
brought to that Tribunal.
131 Such a view has been endorsed and further developed by
the ILA, which held that “a dispute over the question whether the outer limit has
been established ‘on the basis’ of the recommendations of the CLCS can be settled in
accordance with Section 2 of Part XV of the Convention”.
132 At the end of the day, it
is not about creating a hierarchy between UNCLOS-based institutions, but
safeguarding the right of sovereign states to seek relief for an alleged violation of
law before an international adjudicating body.
133
Secondly, Tribunal may be required to exercise judicial control over the actions
of the Commission, a mandate which is not entirely clear from UNCLOS provisions.
134 It would be the case of State B challenging the recommendations of the
129 Details on this position would be too complex to handle within this section and would, besides,
escape the main purpose of the work.
130 Of the same view, Marotta Rangel, to whom “judicial and arbitral control are admissible even
after the Commission’s recommendation”. See Rangel (2006), p. 362.
131 If the parties opted for different mechanisms, the legal dispute may be submitted unilaterally to
arbitration. See Wolfrum (2008), p. 9.
132 ILA (2002), p. 6.
133 In the view of Rüdiger Wolfrum, ITLOS judgement in such a case could even strengthen the
Commission’s recommendations, instead of crippling the authority of the Commission. See
Wolfrum (2008), p. 12.
134 Authors such as Marotta Rangel point out the need for “judicial control over the Commission’s
actions”, based on the obligation falling upon the Commission to make recommendations in
accordance with UNCLOS Art. 76. The ITLOS is the body responsible for interpreting and settling
disputes related to the enforcement of the Convention. See Rangel (2006), p. 359.
3.4 Delimiting and Delineating: The International Tribunal for the Law of the Sea
75