Court of Justice to confirm the first paragraph of that provision, on the definition of
the outer limits of the continental shelf, as “part of customary international law”.
150
It does not mean, however, that the entirety of Art. 76 has achieved a recognized
customary nature, as the delineation process, its nuances and details are still a
debated topic. Tullio Treves, for instance, holds that “the procedures to be followed
before the CLCS are binding for States parties to UNCLOS even in the context of a
dispute with a non-party”,
151 a view which seems to have been confirmed before the
ICJ, namely in the dispute between Nicaragua and Colombia, as the latter is not a
party to the Convention, but still took measures to abide by the procedural provisions
of Art. 76.
On the one hand, coastal states have massively resorted to that provision and
made submissions to the CLCS, abiding by the procedure established by the
Convention. On the other, the process of delineating has seen differing views
embraced by coastal states with active submission at the CLCS concerning technical
provisions and the interpretation of specific terms of the Convention. For that reason,
the opinion on the customary nature of Art. 76 and the delineation procedure has not
been consensual, as some authors question the opinion juris element of the practice,
based on the view that states have differing interpretation of Art. 76 concepts and
requirements.
152 With data venia to the scholars embracing this latter view, it seems
evident by resort to state practice and international jurisprudence that large portions
of Art. 76 and its procedures have been internalized by the international society as
law. It is, thus, consentaneous to international law to claim that the delineation
procedure has acquired a customary nature, which ought to be recognized including
by non-parties to UNCLOS.
3.6 Partial Conclusions
Broad-margin coastal states have managed to include the continental shelf beyond
200 nm into the wording of UNCLOS, yet not in an absolute manner. The acceptance of extended coastal state jurisdiction over the seafloor came along several
compromises, including the limitation of the outer limits to 350 nm or 100 nm from
the 2500-meter depth isobath. In order to protect their rights, broad-margin states
made sure the Convention would not admit reservations concerning the delineation
150 ICJ Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012
(II), para 126.
151 Treves (2017), p. 539.
152 For more on the denial of customary nature to the process of delineating the outer limits of the
continental shelf, see Tassin (2013), p. 22.
3.6 Partial Conclusions
79
the outer limits of the continental shelf, as “part of customary international law”.
150
It does not mean, however, that the entirety of Art. 76 has achieved a recognized
customary nature, as the delineation process, its nuances and details are still a
debated topic. Tullio Treves, for instance, holds that “the procedures to be followed
before the CLCS are binding for States parties to UNCLOS even in the context of a
dispute with a non-party”,
151 a view which seems to have been confirmed before the
ICJ, namely in the dispute between Nicaragua and Colombia, as the latter is not a
party to the Convention, but still took measures to abide by the procedural provisions
of Art. 76.
On the one hand, coastal states have massively resorted to that provision and
made submissions to the CLCS, abiding by the procedure established by the
Convention. On the other, the process of delineating has seen differing views
embraced by coastal states with active submission at the CLCS concerning technical
provisions and the interpretation of specific terms of the Convention. For that reason,
the opinion on the customary nature of Art. 76 and the delineation procedure has not
been consensual, as some authors question the opinion juris element of the practice,
based on the view that states have differing interpretation of Art. 76 concepts and
requirements.
152 With data venia to the scholars embracing this latter view, it seems
evident by resort to state practice and international jurisprudence that large portions
of Art. 76 and its procedures have been internalized by the international society as
law. It is, thus, consentaneous to international law to claim that the delineation
procedure has acquired a customary nature, which ought to be recognized including
by non-parties to UNCLOS.
3.6 Partial Conclusions
Broad-margin coastal states have managed to include the continental shelf beyond
200 nm into the wording of UNCLOS, yet not in an absolute manner. The acceptance of extended coastal state jurisdiction over the seafloor came along several
compromises, including the limitation of the outer limits to 350 nm or 100 nm from
the 2500-meter depth isobath. In order to protect their rights, broad-margin states
made sure the Convention would not admit reservations concerning the delineation
150 ICJ Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012
(II), para 126.
151 Treves (2017), p. 539.
152 For more on the denial of customary nature to the process of delineating the outer limits of the
continental shelf, see Tassin (2013), p. 22.
3.6 Partial Conclusions
79