Commission, its validity, its material consistency with UNCLOS, and its procedural
correctness. Here, it seems that ruling out the possibility of a judicial institution
examining the validity of the actions of another international body would prejudice
the intrinsic function of international courts and tribunals—that of settling controversies and pacifying society. Not in vain, the general rule in international law is that
“a court or tribunal is not excluded from exercising its jurisdiction in contentious
case between two States in which the validity of a decision of an international body
is being impugned”.
135
In this case, the CLCS cannot be a party to the proceedings and shall not be bound
by the final decision, given that the judgement effects solely the disputing parties,
even though it would be advisable for the Commission to do so. A control of this
kind is necessary for the coherent implementations of UNCLOS’ provisions and
does not amount to a violation of the functions and mandate of the Commission. In
other words, as long as it is provoked (for a tribunal could never initiate such control
ex officio), a court or tribunal may indeed entertain such a case and find that a CLCS
recommendation is invalid, in case the Commission acted beyond the limits of its
legal mandate.
136
Intervention by the Tribunal in those borderline situations, though beneficial for
the upholding of international law as it may be, raises questions on the multifaceted
interaction between law and science on the interpretation of Art. 76.
137 In the quest
for tackling a recommendation by the CLCS, which was allegedly rendered after
extensive scientific and technical debates, the Tribunal ought to anchor its judgement
on the most accurate scientific knowledge available. Conscious of such a challenge
ahead of the international judge, UNCLOS negotiators have provided for the
designation of scientific experts in both delineation and delimitation cases beyond
200 nm.
138 In fact, Art. 289 of the Convention is an important innovation in
international law.
Yet, neither ITLOS nor arbitral tribunals have invoked it so far in their decisions.
Instead, they have resorted only moderately to experts, as in the Southern Bluefin
Tuna and Land Reclamation cases,
139 with the so-called “cross-examination” procedure by the other party. A possible reason for reluctance, according to Judge Tullio
Treves, could be the skepticism of parties to as dispute as to the independence of
experts, since they are chosen upon consultations.
140 The fact is that, the need to
135 ILA (2002), p. 10.
136 ILA (2006), p. 27.
137 Magnússon (2017), pp. 260–274.
138 On the benefits of having international courts and tribunals resorting to scientific experts in
complex cases, see Rosenne (2007), p. 250.
139 See ITLOS Southern Blue Fin Tuna case, Order of Provisional Measures, 27 August 1999, paras
21 and 25. See also ITLOS Case Concerning Land Reclamation by Singapore in and around the
Straits of Johor, Order of Provisional Measures, 8 October 2003, para 86, on the Tribunal’s request
that a scientific study by independent experts be conducted by the disputing parties.
140 For more on the use of scientific experts by international courts and tribunals, see Treves (2012),
p. 483. Relevance of defining the outer limits of the continental shelf. See Brown (1971), p. 3.
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3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS
correctness. Here, it seems that ruling out the possibility of a judicial institution
examining the validity of the actions of another international body would prejudice
the intrinsic function of international courts and tribunals—that of settling controversies and pacifying society. Not in vain, the general rule in international law is that
“a court or tribunal is not excluded from exercising its jurisdiction in contentious
case between two States in which the validity of a decision of an international body
is being impugned”.
135
In this case, the CLCS cannot be a party to the proceedings and shall not be bound
by the final decision, given that the judgement effects solely the disputing parties,
even though it would be advisable for the Commission to do so. A control of this
kind is necessary for the coherent implementations of UNCLOS’ provisions and
does not amount to a violation of the functions and mandate of the Commission. In
other words, as long as it is provoked (for a tribunal could never initiate such control
ex officio), a court or tribunal may indeed entertain such a case and find that a CLCS
recommendation is invalid, in case the Commission acted beyond the limits of its
legal mandate.
136
Intervention by the Tribunal in those borderline situations, though beneficial for
the upholding of international law as it may be, raises questions on the multifaceted
interaction between law and science on the interpretation of Art. 76.
137 In the quest
for tackling a recommendation by the CLCS, which was allegedly rendered after
extensive scientific and technical debates, the Tribunal ought to anchor its judgement
on the most accurate scientific knowledge available. Conscious of such a challenge
ahead of the international judge, UNCLOS negotiators have provided for the
designation of scientific experts in both delineation and delimitation cases beyond
200 nm.
138 In fact, Art. 289 of the Convention is an important innovation in
international law.
Yet, neither ITLOS nor arbitral tribunals have invoked it so far in their decisions.
Instead, they have resorted only moderately to experts, as in the Southern Bluefin
Tuna and Land Reclamation cases,
139 with the so-called “cross-examination” procedure by the other party. A possible reason for reluctance, according to Judge Tullio
Treves, could be the skepticism of parties to as dispute as to the independence of
experts, since they are chosen upon consultations.
140 The fact is that, the need to
135 ILA (2002), p. 10.
136 ILA (2006), p. 27.
137 Magnússon (2017), pp. 260–274.
138 On the benefits of having international courts and tribunals resorting to scientific experts in
complex cases, see Rosenne (2007), p. 250.
139 See ITLOS Southern Blue Fin Tuna case, Order of Provisional Measures, 27 August 1999, paras
21 and 25. See also ITLOS Case Concerning Land Reclamation by Singapore in and around the
Straits of Johor, Order of Provisional Measures, 8 October 2003, para 86, on the Tribunal’s request
that a scientific study by independent experts be conducted by the disputing parties.
140 For more on the use of scientific experts by international courts and tribunals, see Treves (2012),
p. 483. Relevance of defining the outer limits of the continental shelf. See Brown (1971), p. 3.
76
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS