Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State

Signe Veierud Busch, Ph.D. (2014), University of Tromsø, is a Post-doctoral research fellow at the K.G. Jebsen Centre for the Law of the Sea at the University of Tromsø.

• ACKNOWLEDGEMENTSLIST OF ABBREVIATIONS AND SHORT FORMSLIST OF TABLESCONVENTIONS AND OTHER INTERNATIONAL INSTRUMENTSPART I – SETTING THE SCENE1INTRODUCTION1.1INTRODUCTION1.2THE LEGAL REGIME OF THE CONTINENTAL SHELF IN A NUTSHELL1.3THE OPPORTUNITY FOR OTHER STATES BE INVOLVED IN A COASTAL STATE’S ESTABLISHMENT OF OCS LIMITS1.4STRUCTURE AND OUTLINE2DEVELOPING A LEGAL REGIME FOR THE CONTINENTAL SHELF AND ITS LIMITS2.1INTRODUCTION2.2THE CONTINENTAL SHELF PRIOR TO UNCLOS III2.3THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA (UNCLOS III)2.3.1Introduction2.3.2Negotiating the outer limits of the continental shelf2.3.3Establishing a Continental Shelf Boundary Commission2.4CONCLUDING REMARKS3THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF (CLCS)3.1INTRODUCTION3.2THE SUBMISSION PROCEDURE TO THE CLCS3.2.1Introduction3.2.2The role and functions of the CLCS3.2.3The ordinary course of making a submission to the CLCS3.2.4The time limit for making submissions (and re-submissions) to the CLCS3.3THE DOCUMENTS OF THE CLCS3.3.1Introduction3.3.2The steering documents of the CLCS3.3.3Outputs by the CLCS3.4TRANSPARENCY, CONFIDENTIALITY AND PRIVACY IN ESTABLISHING OCS LIMITS3.5CONCLUSIONS4INTERNATIONAL DISPUTES AND MECHANISMS FOR THEIR SETTLEMENT4.1INTRODUCTION4.2WHAT IS A DISPUTE?4.2.1A general definition of a ‘dispute’ in international case law4.2.2The scope of disputes under Part XV of the LOSC4.2.3The scope of disputes under Rule 46 of the RoP4.3COMPULSORY JUDICIAL DISPUTE SETTLEMENT: THE LOSC4.3.1Introduction4.3.2The system for dispute settlement under the LOSC4.3.3The principle of compulsory dispute settlement4.4DISPUTE SETTLEMENT OUTSIDE THE SCOPE OF THE LOSC4.4.1Introduction4.4.2Arbitration4.4.3The International Court of Justice (ICJ)4.5THE RELATIONSHIP BETWEEN THE CLCS AND THE INSTITUTIONS FOR DISPUTE SETTLEMENT UNDER PART XV OF THE LOSC4.6CONCLUSIONSPART II – INVOLVEMENT BY OTHER STATES DURING THE CLCS SUBMISSION PROCEDURE5INVOLVEMENT BY OTHER STATES IN CASE OF DISPUTES RELATING TO AN OCS SUBMISSION5.1INTRODUCTION5.2THE SAVING CLAUSES OF THE LOSC: DEVELOPING RULE 46 AND ANNEX I TO THE ROP5.3INITIAL ASSESSMENT: ARE THERE ANY DISPUTES IN RELATION TO THE SUBMISSION?5.3.1Introduction5.3.2Information submitted by the coastal State5.3.3The legal basis for involvement by States other than the coastal State5.3.4A requirement of legal interest for submitting information to the CLCS5.4THE PROCEDURE OF ANNEX I TO THE ROP5.4.1Introduction5.4.2Non-consideration of a submission5.4.3Prior consent5.4.4Partial submissions5.4.5Joint or separate submissions5.5CURRENT DISPUTES CONCERNING THE ESTABLISHMENT OF OCS LIMITS5.5.1Introduction5.5.2Delimitation disputes5.5.3Disputes concerning the title to territory5.5.4Disputes concerning the interpretation or application of the LOSC5.5.5Disputes due to other treaty obligations5.5.6Disputes concerning scientific or technical issues5.6JUDICIAL DISPUTE SETTLEMENT5.7CONCLUSIONS6CONTINENTAL SHELF DELIMITATION DISPUTES6.1INTRODUCTION6.2THE WORDING OF RULE 466.2.1Introduction6.2.2Continental shelf delimitation and Rule 46 in practice6.2.3Is an unresolved boundary delimitation a ‘dispute’?6.2.4The thresholds for invoking Paragraph 5(a) due to unresolved delimitation6.3JUDICIAL DISPUTE SETTLEMENT6.3.1The admissibility of delimitation disputes to judicial settlement in the absence of CLCS recommendations6.3.2The Bay of Bengal case6.3.3Nicaragua/Colombia Delimitation I6.4CONCLUSIONS7DISPUTES CONCERNING THE TITLE TO TERRITORY7.1INTRODUCTION7.2EXPANDING THE SCOPE OF THE SAVING CLAUSES OF THE LOSC7.3DISPUTES CONCERNING THE TITLE TO TERRITORY IN PRACTICE7.3.1Introduction7.3.2The Falkland Islands, South Georgia and the South Sandwich Islands (United Kingdom/Argentina)7.3.3The Spratly Islands, Paracel Islands and Kalayaan Island Group (Vietnam, Malaysia, China/Taiwan, Philippines)7.3.4The Senkaku Islands (China/Taiwan and Japan)7.3.5Essequibo River (Guyana/Venezuela)7.4JUDICIAL DISPUTE SETTLEMENT7.5CONCLUSIONS8DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF THE LOSC8.1INTRODUCTION8.2THE INTERPRETATIVE COMPETENCE OF THE CLCS8.3DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF ARTICLE 768.3.1Introduction8.3.2Current disputes concerning the natural prolongation criterion8.3.3Are disputes concerning Article 76 relevant disputes for the purpose of the CLCS?8.3.4The extent of the CLCS interpretative competence in relation to Article 768.3.5The competence of the CLCS in disputes concerning Article 768.4DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF THE STATEMENT OF UNDERSTANDING8.4.1Introduction8.4.2The Statement of Understanding8.4.3Potential disputes concerning the Statement of Understanding8.4.4Are disputes concerning the Statement of Understanding relevant to the purpose of the CLCS?8.5DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF ARTICLE 121(3)8.5.1Introduction8.5.2The Oki-no-Tori Shima dispute8.5.3The interpretative competence of the CLCS on Article 121(3)8.5.4Is a dispute concerning the interpretation or application of Article 121(3) a ‘land or maritime dispute’?8.5.5What is required to constitute sufficient interest in a matter concerning the encroachment of the Area?8.6DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF ARTICLE 78.6.1Introduction8.6.2Current disputes concerning invalid baselines8.6.3The CLCS’ interpretative competence regarding Article 78.6.4Is a dispute concerning the interpretation or application of Article 7 a ‘land or maritime dispute’?8.7JUDICIAL DISPUTE SETTLEMENT8.7.1Introduction8.7.2Disputes within the interpretative competence of the CLCS8.7.3Disputes outside of the interpretative competence of the CLCS8.8GENERAL CONCLUSIONS9DISPUTES DUE TO OTHER TREATY OBLIGATIONS: THE ANTARCTIC TREATY9.1INTRODUCTION9.2THE CURRENT REGIME FOR ANTARCTIC CLAIMS9.3CURRENT CONTROVERSIES ABOUT ANTARCTIC CONTINENTAL SHELF SUBMISSIONS9.3.1Introduction9.3.2Submissions by Australia, Argentina and Norway9.3.3Submissions by France, New Zealand and the United Kingdom9.3.4Preliminary information submitted by Chile9.4ARE DISPUTES CONCERNING ANTARCTICA ‘LAND OR MARITIME DISPUTES’?9.4.1Introduction9.4.2Do Antarctic coastal States exist?9.4.3How can a ‘sufficient interest’ be established in relation to Antarctic territory?9.4.4Overlapping claims to Antarctic territory9.4.5Overlapping entitlement to the continental shelf9.5JUDICIAL DISPUTE SETTLEMENT9.6CONCLUSIONS10INVOLVEMENT BY OTHER STATES OUTSIDE THE SCOPE OF RULE 4610.1INTRODUCTION10.2CURRENT STATE PRACTICE: STATE REACTIONS OUTSIDE THE SCOPE OF RULE 46?10.3NOTES VERBALES ADDRESSING SCIENTIFIC AND TECHNICAL ISSUES10.3.1A legal basis for notes verbales addressing scientific and technical issues10.3.2Advice by specialists10.3.3Coastal State responses to notifications on scientific and technical issues from other States10.3.4Optional consideration for the CLCS10.4JUDICIAL DISPUTE SETTLEMENT10.5CONCLUSIONS11THE CLCS AND THE ROLE OF NON-PARTIES TO THE LOSC11.1INTRODUCTION11.2THE ROLE OF STATES NON-PARTIES AS COASTAL STATES11.2.1Introduction11.2.2The entitlement of non-parties to a continental shelf11.2.3The spatial scope of the entitlement to a continental shelf11.2.4The requirement of ‘natural prolongation’ and ‘outer edge of the continental margin’ in customary international law11.2.5Can a non-party make an OCS submission to the CLCS?11.2.6Are there any alternatives to recourse to the CLCS procedure?11.3THE ROLE OF STATES NON-PARTIES HAVING AN INTEREST IN THE OCS LIMIT LOCATION11.4JUDICIAL DISPUTE SETTLEMENT11.5CONCLUSIONSPART III – INVOLVEMENT BY OTHER STATES IN THE AFTERMATH OF THE CLCS SUBMISSION PROCEDURE12DISPUTES RELATING TO OCS LIMITS NOT ESTABLISHED ‘ON THE BASIS OF’ CLCS RECOMMENDATIONS12.1INTRODUCTION12.2THE PHRASE ‘ON THE BASIS OF’12.2.1Introduction12.2.2A legal obligation to establish OCS limits ‘on the basis of’ CLCS recommendations12.2.3What is required for OCS limits to be established ‘on the basis of’ CLCS’ recommendations?12.2.4The case of the OCS limits of Brazil12.2.5Practical consequence of non-compliance with CLCS recommendations: lack of ‘final and binding’ OCS limits12.3JUDICIAL DISPUTE SETTLEMENT12.3.1Introduction12.3.2Potential lack of information12.3.3The competence of courts or tribunals to consider OCS limits12.4CONCLUSIONS13DISPUTES RELATING TO ‘FINAL AND BINDING’ OCS LIMITS13.1INTRODUCTION13.2REVIEWING ESTABLISHED OCS LIMITS13.2.1Introduction13.2.2Competence to evaluate coastal State compliance with substantive requirements of Article 7613.2.3Competence to evaluate the validity of CLCS recommendations13.3MEANING AND IMPLICATIONS OF ‘FINAL AND BINDING’ LIMITS13.3.1Introduction13.3.2Final limits – addressing the coastal State13.3.3Binding limits – addressing States other than the coastal State13.3.4When do OCS limits become ‘final and binding’?13.4COASTAL STATES CHALLENGING CLCS RECOMMENDATIONS13.5‘FINAL AND BINDING’ LIMITS ESTABLISHED NOT ‘ON THE BASIS OF’ CLCS RECOMMENDATIONS13.6CONCLUSIONSPART IV – CONCLUSIONS AND OBSERVATIONS14CONCLUSIONS AND OBSERVATIONS14.1INTRODUCTION14.2INVOLVEMENT BY OTHER STATES DURING THE CLCS PROCEDURE14.2.1The scope of involvement by other States14.2.2The consequences of involvement by other States14.3INVOLVEMENT BY OTHER STATES IN THE AFTERMATH OF THE CLCS PROCEDURE14.3.1The scope of involvement in the aftermath of the CLCS procedure14.3.2The consequences of involvement by other States14.4THE ROLE OF NON-PARTIES TO THE LOSC14.5PARTICULAR CHALLENGES RELATING TO THE ESTABLISHMENT OF OCS LIMITS14.5.1Introduction14.5.2Transparency of the CLCS procedure14.5.3The time frame and workload of the CLCS14.5.4The status of the limits in the intermediate stage between submission and recommendations14.5.5The relationship between the CLCS and decisions by international courts or tribunals14.6THE LOSC – A ‘COASTAL STATES’ CONVENTION’?APPENDICESAPPENDIX I: CONTINENTAL SHELF SUBMISSIONS AND REACTIONS BY OTHER STATESAPPENDIX II: PRELIMINARY INFORMATION AND OTHER STATES’ REACTIONSAPPENDIX III: CURRENT NON-PARTIES TO THE LOSCBIBLIOGRAPHYLITERATUREDOCUMENTS:UNCLOS III DocumentsOther UN DocumentsYearbooks of the International Law CommissionDocuments of the Meetings of States Parties to the LOSC (SPLOS) Documents of the CLCSOCS Submissions and relevant notes verbales submitted to the CLCSPreliminary Submissions to the CLCSRecommendations issued by the CLCSReports, papers and handbooksOther documentsTABLE OF CASESInternational Court of JusticePermanent Court of International JusticeInternational Tribunal for the Law of the SeaArbitrationONLINE SOURCESINDEX

"It would be invidious of me to try to summarize the content of the book, given the breadth and detail into which the author has gone. I can only commend this book as a reference guide to all those States affected by the law of the sea which, as the author points out by her examples, includes all States, both cobusbastal and landlocked." - Richard Haworth, School of Public Administration, Dalhousie University"The interesting contribution of this particular book is that it explores whether other states (apart from the state with the extended continental shelf) have a right to be involved in the whole process of determining whether such state has an extended continental shelf. […] the book is an interesting read and an important contribution to the literature on the continental shelf beyond 200 nautical miles." - Edwin Egede, School of Law and Politics, Cardiff University"With the detailed and deep discussion of the role of judicial institutions, the author believes that, 'If the potential of judicial institutions is fully realized, they can play an instrumental role in ensuring the compliance and enforcement of international law, thereby ensuring a rule-based system of maritime security governance'...Therefore, this book is “proposing coordinated efforts by all States for the operationalization of judicial institutions for the common goal of combating maritime terrorism." - Yin Yang, Law School, Sun Yat-sen University