Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States?

International Law

Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States?

By Signe Veierud Busch
Brill Nijhoff August 2016

Specifications

ISBN-13
9789004326231
Publisher
Brill Nijhoff
Publication
August 2016
Format
Hardback
Jurisdiction
Netherlands ? Countri(es) for reference only

Details

In Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States?, Signe Veierud Busch undertakes a study of all coastal State submissions to the Commission on the Limits of the Continental Shelf and asks under which circumstances and to what extent States other than the coastal State may intervene in the process of establishing final and binding continental shelf limits.

After analysing relevant provisions in the UN Convention on the Law of the Sea and the Commission’s Rules of Procedure compared with the practice of States and the Commission, Busch raises the overall question if the possibility for other States to block the work of the Commission may in fact be undermining the mandate and functions of the Commission.

Table of Contents

ACKNOWLEDGEMENTS
LIST OF ABBREVIATIONS AND SHORT FORMS
LIST OF TABLES
CONVENTIONS AND OTHER INTERNATIONAL INSTRUMENTS
PART I – SETTING THE SCENE
1.
INTRODUCTION
1.1 INTRODUCTION
1.2 THE LEGAL REGIME OF THE CONTINENTAL SHELF IN A NUTSHELL
1.3 THE OPPORTUNITY FOR OTHER STATES BE INVOLVED IN A COASTAL STATE’S ESTABLISHMENT OF OCS LIMITS
1.4 STRUCTURE AND OUTLINE
2.
DEVELOPING A LEGAL REGIME FOR THE CONTINENTAL SHELF AND ITS LIMITS
2.1 INTRODUCTION
2.2 THE CONTINENTAL SHELF PRIOR TO UNCLOS III
2.3 THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA (UNCLOS III)
2.3.1 Introduction
2.3.2 Negotiating the outer limits of the continental shelf
2.3.3 Establishing a Continental Shelf Boundary Commission
2.4 CONCLUDING REMARKS
3.
THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF (CLCS)
3.1 INTRODUCTION
3.2 THE SUBMISSION PROCEDURE TO THE CLCS
3.2.1 Introduction
3.2.2 The role and functions of the CLCS
3.2.3 The ordinary course of making a submission to the CLCS
3.2.4 The time limit for making submissions (and re-submissions) to the CLCS
3.3 THE DOCUMENTS OF THE CLCS
3.3.1 Introduction
3.3.2 The steering documents of the CLCS
3.3.3 Outputs by the CLCS
3.4 TRANSPARENCY, CONFIDENTIALITY AND PRIVACY IN ESTABLISHING OCS LIMITS
3.5 CONCLUSIONS
4.
INTERNATIONAL DISPUTES AND MECHANISMS FOR THEIR SETTLEMENT
4.1 INTRODUCTION
4.2 WHAT IS A DISPUTE?
4.2.1 A general definition of a ‘dispute’ in international case law
4.2.2 The scope of disputes under Part XV of the LOSC
4.2.3 The scope of disputes under Rule 46 of the RoP
4.3 COMPULSORY JUDICIAL DISPUTE SETTLEMENT: THE LOSC
4.3.1 Introduction
4.3.2 The system for dispute settlement under the LOSC
4.3.3 The principle of compulsory dispute settlement
4.4 DISPUTE SETTLEMENT OUTSIDE THE SCOPE OF THE LOSC
4.4.1 Introduction
4.4.2 Arbitration
4.4.3 The International Court of Justice (ICJ)
4.5 THE RELATIONSHIP BETWEEN THE CLCS AND THE INSTITUTIONS FOR DISPUTE SETTLEMENT UNDER PART XV OF THE LOSC
4.6 CONCLUSIONS
PART II – INVOLVEMENT BY OTHER STATES DURING THE CLCS SUBMISSION PROCEDURE
5.
INVOLVEMENT BY OTHER STATES IN CASE OF DISPUTES RELATING TO AN OCS SUBMISSION
5.1 INTRODUCTION
5.2 THE SAVING CLAUSES OF THE LOSC: DEVELOPING RULE 46 AND ANNEX I TO THE ROP
5.3 INITIAL ASSESSMENT: ARE THERE ANY DISPUTES IN RELATION TO THE SUBMISSION?
5.3.1 Introduction
5.3.2 Information submitted by the coastal State
5.3.3 The legal basis for involvement by States other than the coastal State
5.3.4 A requirement of legal interest for submitting information to the CLCS
5.4 THE PROCEDURE OF ANNEX I TO THE ROP
5.4.1 Introduction
5.4.2 Non-consideration of a submission
5.4.3 Prior consent
5.4.4 Partial submissions
5.4.5 Joint or separate submissions
5.5 CURRENT DISPUTES CONCERNING THE ESTABLISHMENT OF OCS LIMITS
5.5.1 Introduction
5.5.2 Delimitation disputes
5.5.3 Disputes concerning the title to territory
5.5.4 Disputes concerning the interpretation or application of the LOSC
5.5.5 Disputes due to other treaty obligations
5.5.6 Disputes concerning scientific or technical issues
5.6 JUDICIAL DISPUTE SETTLEMENT
5.7 CONCLUSIONS
6.
CONTINENTAL SHELF DELIMITATION DISPUTES
6.1 INTRODUCTION
6.2 THE WORDING OF RULE 46
6.2.1 Introduction
6.2.2 Continental shelf delimitation and Rule 46 in practice
6.2.3 Is an unresolved boundary delimitation a ‘dispute’?
6.2.4 The thresholds for invoking Paragraph 5(a) due to unresolved delimitation
6.3 JUDICIAL DISPUTE SETTLEMENT
6.3.1 The admissibility of delimitation disputes to judicial settlement in the absence of CLCS recommendations
6.3.2 The Bay of Bengal case
6.3.3 Nicaragua/Colombia Delimitation I
6.4 CONCLUSIONS
7.
DISPUTES CONCERNING THE TITLE TO TERRITORY
7.1 INTRODUCTION
7.2 EXPANDING THE SCOPE OF THE SAVING CLAUSES OF THE LOSC
7.3 DISPUTES CONCERNING THE TITLE TO TERRITORY IN PRACTICE
7.3.1 Introduction
7.3.2 The Falkland Islands, South Georgia and the South Sandwich Islands (United Kingdom/Argentina)
7.3.3 The Spratly Islands, Paracel Islands and Kalayaan Island Group (Vietnam, Malaysia, China/Taiwan, Philippines)
7.3.4 The Senkaku Islands (China/Taiwan and Japan)
7.3.5 Essequibo River (Guyana/Venezuela)
7.4 JUDICIAL DISPUTE SETTLEMENT
7.5 CONCLUSIONS
8.
DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF THE LOSC
8.1 INTRODUCTION
8.2 THE INTERPRETATIVE COMPETENCE OF THE CLCS
8.3 DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF ARTICLE 76
8.3.1 Introduction
8.3.2 Current disputes concerning the natural prolongation criterion
8.3.3 Are disputes concerning Article 76 relevant disputes for the purpose of the CLCS?
8.3.4 The extent of the CLCS interpretative competence in relation to Article 76
8.3.5 The competence of the CLCS in disputes concerning Article 76
8.4 DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF THE STATEMENT OF UNDERSTANDING
8.4.1 Introduction
8.4.2 The Statement of Understanding
8.4.3 Potential disputes concerning the Statement of Understanding
8.4.4 Are disputes concerning the Statement of Understanding relevant to the purpose of the CLCS?
8.5 DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF ARTICLE 121(3)
8.5.1 Introduction
8.5.2 The Oki-no-Tori Shima dispute
8.5.3 The interpretative competence of the CLCS on Article 121(3)
8.5.4 Is a dispute concerning the interpretation or application of Article 121(3) a ‘land or maritime dispute’?
8.5.5 What is required to constitute sufficient interest in a matter concerning the encroachment of the Area?
8.6 DISPUTES CONCERNING THE INTERPRETATION OR APPLICATION OF ARTICLE 7
8.6.1 Introduction
8.6.2 Current disputes concerning invalid baselines
8.6.3 The CLCS’ interpretative competence regarding Article 7
8.6.4 Is a dispute concerning the interpretation or application of Article 7 a ‘land or maritime dispute’?
8.7 JUDICIAL DISPUTE SETTLEMENT
8.7.1 Introduction
8.7.2 Disputes within the interpretative competence of the CLCS
8.7.3 Disputes outside of the interpretative competence of the CLCS
8.8 GENERAL CONCLUSIONS
9.
DISPUTES DUE TO OTHER TREATY OBLIGATIONS: THE ANTARCTIC TREATY
9.1 INTRODUCTION
9.2 THE CURRENT REGIME FOR ANTARCTIC CLAIMS
9.3 CURRENT CONTROVERSIES ABOUT ANTARCTIC CONTINENTAL SHELF SUBMISSIONS
9.3.1 Introduction
9.3.2 Submissions by Australia, Argentina and Norway
9.3.3 Submissions by France, New Zealand and the United Kingdom
9.3.4 Preliminary information submitted by Chile
9.4 ARE DISPUTES CONCERNING ANTARCTICA ‘LAND OR MARITIME DISPUTES’?
9.4.1 Introduction
9.4.2 Do Antarctic coastal States exist?
9.4.3 How can a ‘sufficient interest’ be established in relation to Antarctic territory?
9.4.4 Overlapping claims to Antarctic territory
9.4.5 Overlapping entitlement to the continental shelf
9.5 JUDICIAL DISPUTE SETTLEMENT
9.6 CONCLUSIONS
10.
INVOLVEMENT BY OTHER STATES OUTSIDE THE SCOPE OF RULE 46
10.1 INTRODUCTION
10.2 CURRENT STATE PRACTICE: STATE REACTIONS OUTSIDE THE SCOPE OF RULE 46?
10.3 NOTES VERBALES ADDRESSING SCIENTIFIC AND TECHNICAL ISSUES
10.3.1 A legal basis for notes verbales addressing scientific and technical issues
10.3.2 Advice by specialists
10.3.3 Coastal State responses to notifications on scientific and technical issues from other States
10.3.4 Optional consideration for the CLCS
10.4 JUDICIAL DISPUTE SETTLEMENT
10.5 CONCLUSIONS
11.
THE CLCS AND THE ROLE OF NON-PARTIES TO THE LOSC
11.1 INTRODUCTION
11.2 THE ROLE OF STATES NON-PARTIES AS COASTAL STATES
11.2.1 Introduction
11.2.2 The entitlement of non-parties to a continental shelf
11.2.3 The spatial scope of the entitlement to a continental shelf
11.2.4 The requirement of ‘natural prolongation’ and ‘outer edge of the continental margin’ in customary international law
11.2.5 Can a non-party make an OCS submission to the CLCS?
11.2.6 Are there any alternatives to recourse to the CLCS procedure?
11.3 THE ROLE OF STATES NON-PARTIES HAVING AN INTEREST IN THE OCS LIMIT LOCATION
11.4 JUDICIAL DISPUTE SETTLEMENT
11.5 CONCLUSIONS
PART III – INVOLVEMENT BY OTHER STATES IN THE AFTERMATH OF THE CLCS SUBMISSION PROCEDURE
12.
DISPUTES RELATING TO OCS LIMITS NOT ESTABLISHED ‘ON THE BASIS OF’ CLCS RECOMMENDATIONS
12.1 INTRODUCTION
12.2 THE PHRASE ‘ON THE BASIS OF’
12.2.1 Introduction
12.2.2 A legal obligation to establish OCS limits ‘on the basis of’ CLCS recommendations
12.2.3 What is required for OCS limits to be established ‘on the basis of’ CLCS’ recommendations?
12.2.4 The case of the OCS limits of Brazil
12.2.5 Practical consequence of non-compliance with CLCS recommendations: lack of ‘final and binding’ OCS limits
12.3 JUDICIAL DISPUTE SETTLEMENT
12.3.1 Introduction
12.3.2 Potential lack of information
12.3.3 The competence of courts or tribunals to consider OCS limits
12.4 CONCLUSIONS
13.
DISPUTES RELATING TO ‘FINAL AND BINDING’ OCS LIMITS
13.1 INTRODUCTION
13.2 REVIEWING ESTABLISHED OCS LIMITS
13.2.1 Introduction
13.2.2 Competence to evaluate coastal State compliance with substantive requirements of Article 76
13.2.3 Competence to evaluate the validity of CLCS recommendations
13.3 MEANING AND IMPLICATIONS OF ‘FINAL AND BINDING’ LIMITS
13.3.1 Introduction
13.3.2 Final limits – addressing the coastal State
13.3.3 Binding limits – addressing States other than the coastal State
13.3.4 When do OCS limits become ‘final and binding’?
13.4 COASTAL STATES CHALLENGING CLCS RECOMMENDATIONS
13.5 ‘FINAL AND BINDING’ LIMITS ESTABLISHED NOT ‘ON THE BASIS OF’ CLCS RECOMMENDATIONS
13.6 CONCLUSIONS
PART IV – CONCLUSIONS AND OBSERVATIONS
14.
CONCLUSIONS AND OBSERVATIONS
14.1 INTRODUCTION
14.2 INVOLVEMENT BY OTHER STATES DURING THE CLCS PROCEDURE
14.2.1 The scope of involvement by other States
14.2.2 The consequences of involvement by other States
14.3 INVOLVEMENT BY OTHER STATES IN THE AFTERMATH OF THE CLCS PROCEDURE
14.3.1 The scope of involvement in the aftermath of the CLCS procedure
14.3.2 The consequences of involvement by other States
14.4 THE ROLE OF NON-PARTIES TO THE LOSC
14.5 PARTICULAR CHALLENGES RELATING TO THE ESTABLISHMENT OF OCS LIMITS
14.5.1 Introduction
14.5.2 Transparency of the CLCS procedure
14.5.3 The time frame and workload of the CLCS
14.5.4 The status of the limits in the intermediate stage between submission and recommendations
14.5.5 The relationship between the CLCS and decisions by international courts or tribunals
14.6 THE LOSC – A ‘COASTAL STATES’ CONVENTION’?
APPENDICES
APPENDIX I: CONTINENTAL SHELF SUBMISSIONS AND REACTIONS BY OTHER STATES
APPENDIX II: PRELIMINARY INFORMATION AND OTHER STATES’ REACTIONS
APPENDIX III: CURRENT NON-PARTIES TO THE LOSC
BIBLIOGRAPHY
LITERATURE
DOCUMENTS:
UNCLOS III Documents
Other UN Documents
Yearbooks of the International Law Commission
Documents of the Meetings of States Parties to the LOSC (SPLOS)
Documents of the CLCS
OCS Submissions and relevant notes verbales submitted to the CLCS
Preliminary Submissions to the CLCS
Recommendations issued by the CLCS
Reports, papers and handbooks
Other documents
TABLE OF CASES
International Court of Justice
Permanent Court of International Justice
International Tribunal for the Law of the Sea
Arbitration
ONLINE SOURCES
INDEX
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