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THE INTERNATIONAL JOURNAL OF

MARINE
AND COASTAL
The International Journal of LAW
Marine and Coastal Law 25 (2010) 237270 brill.nl/estu

The Admissibility of a Plea to an International


Adjudicative Forum to Delimit the Outer
Continental Shelf Prior to the Adoption
of Final Recommendations by the Commission
on the Limits of the Continental Shelf

Bjrn Kunoy*
Legal Adviser, Ministry of Foreign Aairs, Faroes

Abstract
It is not the role of an international adjudicative body in the exercise of its contentious juris-
diction, to advise parties as to what their rights would be under a hypothetical state of facts.
Having in mind the importance international law attaches to the judicial principle res iudi-
cata, the question examined in this article is whether an international adjudicative body
should accept the application to delimit the outer continental shelf, to which there are over-
lapping claims, prior to the completion of the work of the Commission on the Limits of the
Continental Shelf. Notwithstanding the unilateral character of the delineation of the outer
limits of the continental shelf and its conceptual detachment from delimitation, these two
operations are intertwined. Thus, it could aect the holistic application of the Law of the Sea
Convention, should international adjudicative bodies accept to delimit the outer continental
shelf in the absence of any recommendations by the Commission.

Keywords
Commission on the Limits of the Continental Shelf; outer continental shelf; delimitation;
jurisdiction

Introduction

Where a coastal State intends to establish, in accordance with Article 76 of


the United Nations Convention on the Law of the Sea1 (LOSC), the outer
limits of its continental shelf beyond 200 nautical miles (nm), it shall submit
particulars of such limits to the Commission on the Limits of the Continen-
tal Shelf (the Commission or CLCS), along with supporting scientic and

* The present views are strictly those of the author.


1
Concluded 10 December 1982 and entered into force 16 November 1994, 1833 UNTS
396.
Koninklijke Brill NV, Leiden, 2010 DOI: 10.1163/157180910X12665776638704
238 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

technical data, as soon as possible, but in any case within 10 years of the
entry into force of the LOSC for that State.2 The Commission shall, consis-
tent with Article 76(8) and Annex II to the LOSC, make recommendations
to a submitting coastal State on matters related to the delineation of the
outer limits of its continental shelf.3 According to LOSC Article 76(8), the
delineation of the outer limits of the continental shelf shall be consistent
with and based upon the recommendations of the Commission. Only such
delineations of the outer limits of the continental shelf are nal and binding.4
In other words, it is a prerequisite for a State Party to the LOSC to submit
such scientic data to the Commission and to delineate the outer limits of its
continental shelf on the basis of the recommendations of the Commission.5
The Commission is hence vested with an important role for this purpose, a
point noted by the former Legal Counsel of the United Nations, Mr. Hans
Corell, in his opening statement at the rst session of the CLCS, that the
Commission was of paramount importance to the United Nations and to
the international community as a whole and would play a pivotal role in the
establishment of the outer limits of the continental shelf of coastal States.6
Article 76 of the LOSC provides explicitly that the work of the Commis-
sion shall not prejudice any delimitation of the continental shelf.7 By the
same token it could hence be argued that the consideration by the Commis-
2
At the Eleventh Meeting of the States Parties, several State Parties to the LOSC put for-
ward the view that they were not in a position to comply with the 10-year time frame. It was
argued that the principal reason for the diculties in meeting the 10-year time frame was
because they had received a clear understanding of how to prepare a submission only after
the adoption of the Commissions Scientic and Technical Guidelines. It was agreed at that
Meeting, in Decision SPLOS/72, that the date of commencement of the 10-year time period
for making submissions to the Commission, for the states for which the LOSC had entered
into force prior to 13 May 1999, would be the date of adoption of the Scientic and Techni-
cal Guidelines (i.e., 13 May 1999). The developing countries did not overcome the structural
problems in the preparation of their submissions within the new time frame, and at the
Eighteenth Meeting of the States Parties a new decision was adopted with regard to the
10-year time frame. The States Parties, in Decision SPLOS/183, agreed that the 10-year time
frame and Decision SPLOS/72 may be satised by submitting only preliminary information
indicative of the outer limits of the continental shelf beyond 200 nautical miles (nm) within
the time-frame obligation agreed on in Decision SPLOS/72.
3
See LOSC Article 76(8).
4
Ibid.
5
According to Article 8 of Annex II to the LOSC, [i]n the case of disagreement by the
coastal State with the recommendations of the Commission, the coastal State shall, within a
reasonable time, make a revised or new submission to the Commission.
6
CLCS/1, p. 3.
7
LOSC Article 76(10) reads as follows: The provisions of this article are without prejudice
to the question of delimitation of the continental shelf between States with opposite or adja-
cent coasts.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 239

sion of a submission and a delimitation of the same area by an international


adjudicative body are two dierent operations. Notwithstanding the above,
it is dicult to escape the interpretation that these two operations are
intertwined.8
The recommendations of the Commission shall be in accordance with
Article 76 of the Convention, the Statement of Understanding [the Rules
of Procedure of the Commission] and the Guidelines.9 It could hence be
argued that recommendations of the Commission have a central importance
and one can only agree with Schreuer when he argues that recommendations
generally are of particular importance where other legal considerations do
not yield a clear and satisfactory answer. Especially in the interpretation of
applicable legal prescriptions like treaty provisions and also domestic statutes,
recommendations can be an important help.10 The above is certainly of rele-
vance, taking into account that LOSC Article 76 is ambiguous in many
terms and makes use of scientic terms in a legal context which at times
departs signicantly from accepted scientic denitions and terminology.11
The recommendations of the Commission are not only an important help,
but are susceptible to become normative. A delineation of the outer limits of
the continental shelf without proceeding with the procedures prescribed in
the LOSC is inconsistent with international law. In the words of the Inter-
national Court of Justice (hereafter the Court), any claim of continental
shelf rights beyond 200 miles must be in accordance with Article 76 of
UNCLOS and reviewed by the Commission on the Limits of the Continen-
tal Shelf established thereunder.12 Notwithstanding the fact that the entitle-
ment to the continental shelf is inherent,13 the delineation of the outer limits
of the continental shelf has, in order to be consistent with international law
and thus opposable to third States, to be based on the recommendations of

8
Reference can illustratively be made to the Agreed Minutes concluded 20 September 2006
by the Minister for Foreign Aairs of the Kingdom of Denmark, together with the Prime
Minister of the Government of the Faroes, the Minister for Foreign Aairs of Iceland and the
Minister of Foreign Aairs of the Kingdom of Norway, which, on a prospective basis, seek to
delimit the Southern Banana Hole, in which the agreed delimitation lines are subject to the
understanding that the Commission embraces at least the respective allocated portions of the
outer continental shelf provided for in the Agreed Minutes.
9
Excerpt from Rule 11.3 of Annex III to the Rules of Procedure.
10
C. Schreuer, Recommendations and the Traditional Sources of International Law, (1977)
20 German Yearbook of International Law, 103118, at 118.
11
Excerpt from paragraph 1.3 of the Guidelines.
12
ICJ, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean
Sea, Judgment, ICJ Rep. 2007, p. 90, para. 319.
13
See V. Golitsyn, Continental Shelf Claims in the Arctic Ocean: A Commentary, (2009)
24 International Journal of Marine and Coastal Law, 401408, at 401.
240 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

the Commission.14 A unilateral delineation of the outer limits of the conti-


nental shelf, deviating from the prescribed procedures in Article 76(8) and
Annex II to the LOSC, is not consistent with international law and as a con-
sequence is not opposable to other States.15
The Commission has the competence to adopt recommendations in which
it embraces or rejects the outer limits proposed by a coastal State, although it
does not have the power to enforce its recommendations. To the extent that
the relevant coastal State disagrees with the recommendations of the Com-
mission, the coastal State shall, within a reasonable time, make a revised or
new submission to the Commission.16 Bearing in mind the power of the
Commission not to embrace the limits proposed by a coastal State in a sub-
mission, the question arises whether an international adjudicative body has
jurisdiction to delimit an area of the outer continental shelf17 for which the
Commission has not issued its recommendations to all States parties to the
dispute. This paper examines, on a hypothetical basis, the contentious juris-
dictional basis of an international adjudicative body to accept the admissibil-
ity of delimiting an area of the outer continental shelf for which the States
party to the dispute have not yet had the proposed limits considered by the
Commission. It will be concluded that as a consequence of the mandatory
procedure prior to any delineation of the outer limits of the continental shelf
by States Parties to the LOSC, it is not consistent with common judicial
principles for an international adjudicative body to accept the admissibility
of an application to delimit the outer continental shelf prior to the adoption
of nal recommendations by the Commission.

14
It is, however, commonly considered that this function of the Commission does not curtail
the competence of States Parties to interpret the LOSC, see International Law Association,
Toronto (2006), Legal Issues of the Outer Continental Shelf, Conclusion No. 1, p. 11, acces-
sible at <http://www.ila-hq-org/en/committees/index.cfm/cid/33> (last visited on 10 Decem-
ber 2009).
15
On the validity of unilateral delimitations, see ICJ, Case Concerning Delimitation of the
Maritime Boundary in the Gulf of Maine Area (Gulf of Maine), Judgment, ICJ Rep. 1984,
p. 292, para. 87; ICJ, Tunisia v. Libyan Arab Jamahiriya (Tunisia v. Libya), Judgment, ICJ
Rep. 1982, p. 66, para. 87.
16
Excerpt from Article 8 of Annex II to the LOSC.
17
As pointed out by the Arbitral Tribunal in the Barbados v. Trinidad & Tobago award of 11
April 2006, there is in law only a single continental shelf rather than an inner continental
shelf and a separate extended or outer continental shelf ; see para. 213 of Barbados v. Trini-
dad & Tobago, <http://www.pca-cpa.org/upload/les/Final%20Award.pdf> (last visited 26
November 2009). However, for the sake of ease, the continental shelf beyond 200 nm will in
this paper be referred to as the outer continental shelf .
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 241

Role of the Commission

It is a rm principle of international law that coastal States have ipso facto


and ab initio rights to their continental shelf.18 In the words of the Court,
the rights of the coastal State in respect of the area of continental shelf that
constitutes a natural prolongation of its land territory into and under the sea
exist ipso facto and ab initio, by virtue of its sovereignty over the land. [. . .] In
short, here is an inherent right. In order to exercise it, no special legal process
has to be gone through, nor have any special legal acts to be performed.19
Judge Golitsyn has pointed out that for the same reason it is incorrect to
characterise the entitlement of a coastal State to the continental shelf, within
or beyond 200 nm, as a claim, because these rights already exist by virtue
of the inherency clause.20 This could mean that a coastal State may unilater-
ally draw the outer limits of its continental shelf and act accordingly, i.e.,
that this area falls within the inherency doctrine, provided that such limits
were prima facie legitimate and exercised in accordance with international
law. However, as pointed out by Eiriksson, article 77 paragraph 3, [sic]
does not remove from the coastal State the burden of demonstrating its
entitlement21 to the outer continental shelf. Thus, in order to constitute a
nal delineation of the continental shelf, coastal States shall not only submit
scientic data to the Commission, but also base the delineation of the outer
limits of the continental shelf on the basis of the recommendations of the
Commission.
The Commission is not an international adjudicative body, but a treaty
body composed of experts in the elds of geology, geophysics and hydrogra-
phy.22 The Commission shall consider the data and other material23 that

18
LOSC Article 77(2) provides that the rights to the continental shelf do not depend on
occupation, eective or notional, or on any express proclamation.
19
ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal
Republic of Germany v. Netherlands), Judgments, ICJ Rep. 1969, p. 23.
20
Golitsyn, op. cit., supra note 13, at 401.
21
G. Eiriksson, The Case of Disagreement Between a Coastal State and the Commission on
the Limits of the Continental Shelf , in M.H. Nordquist, J.N. Moore and T. Heidar (eds.)
Legal and Scientic Aspects of Continental Shelf Limits, (Martinus Nijho Publishers, Leiden/
Boston, 2004), pp. 251262, at 258.
22
Commentators do not agree on whether the exclusion of lawyers from the Commission
was deliberate or an omission; see Eiriksson, ibid. at 251; L.D.M. Nelson, The Continental
Shelf: Interplay of Law and Science, in N. Ando et al. (eds.), Liber Amicorum Judge Shigeru
Oda, vol. 2, (Kluwer Law International, the Hague, 2002), pp. 12351253, at.1238; E.D.
Brown, Sea-Bed Energy and Minerals: The International Legal Regime-Volume 1, The Continen-
tal Shelf, (Martinus Nijho Publishers, The Hague, 2001), at 31.
23
Excerpt from Article 3(1)(a) of Annex II to the LOSC.
242 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

States Parties submit to the Commission, after consideration of which such


submissions will be subject to recommendations of the Commission. It fol-
lows from Article 7 of Annex II to the LOSC that States Parties shall estab-
lish the outer limits of the continental shelf in conformity with Article 76,
paragraph 824 of the LOSC. Further, in accordance with LOSC Article
76(8), only such delineations of the outer limits of the continental shelf that
are done on the basis of [the] recommendations25 of the Commission
are nal and binding.26 Article 76(8) of the LOSC read in conjunction with
Article 7 of Annex II to the LOSC are unambiguous with regard to what extent
a coastal State has discretion to delineate the outer limits of the continental
shelf. It has been observed that the wording on the basis of these recom-
mendations does give the relevant coastal State une certaine exibilit quil
doit nanmoins interprter raisonnablement27 in order to be consistent with
international law and opposable to third States. Furthermore, other authors
have pointed out that [t]he based upon requirement in paragraph 8 [. . .]
provides certainty and consistency for the international community, while
preserving sucient, although unspecied, exibility for the coastal State.28
Due consideration should, however, also be given to the fact that during the
negotiations of the LOSC, the wording taking into account was considered
prior to the agreed on the basis of , which is the wording of current Article
76(8) of the LOSC.29 It is needless to say that coastal States would be vested
with considerably more autonomy in the delineation of the outer limits of the

24
Excerpt from Article 7 of Annex II to the LOSC.
25
Excerpt from Article 76(8) of the LOSC.
26
This article will not examine the question whether LOSC Article 76 reects customary
international law and by which States that are not contracting parties to the LOSC shall also
proceed mutatis mutandis by the form of submissions to the Commission. The issue was dis-
cussed by the Commission and the question was put to the Meeting of States Parties to the
LOSC, by which the latter was asked to decide on whether the terms a coastal State and a
State in Article 4 of Annex II to the LOSC include a non-State party to the Convention,
or do they only refer to a coastal State or a State which is a State Party to the Convention.
See CLCS/4, para. 12. The question was debated at the Eighth Meeting of States Parties, in
which it was concluded that the Commission should ask the UN Legal Counsel for an opin-
ion only when the problem actually arises; see SPLOS/31, para 52.
27
A. De Mary Mantuano, La Fixation des Dernires Limites Maritimes: La Rle de la
Commission des Limites du Plateau Continental, in V. Coussirat-Coustre et al., (eds.) La
Mer et son Droit: Mlanges Oerts Laurent Luccini et Jean Pierre Quneudec, (Pdone, Paris,
2003), pp. 399419, at 417 (a certain exibility which nevertheless should be interpreted
reasonably, authors translation).
28
R.W. Smith, G. Taft, Legal Aspects of the Continental Shelf in P.J. Cook and C. Carle-
ton (eds.), Continental Shelf Limits: The Scientic and Legal Interface, (Oxford University
Press, Oxford, 2000), pp. 1724, at 20.
29
T. McDorman, The Role of the Commission on the Limits of the Continental Shelf: A
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 243

continental shelf were they only to take into account the recommendations
of the Commission, compared to the regime endorsed in the LOSC, in
which coastal States shall, as mentioned earlier, delineate the outer limits of
the continental shelf on the basis of the recommendations of the Commis-
sion, in order to be opposable to third states. In essence, the Commission has
been assigned signicant powers, consistent with which coastal States shall
delineate the outer limits of the continental shelf.
The delineation of the 200-nm line and the delineation of the limits of
the outer continental shelf are two separate processes. Both delineations are
indeed unilateral acts that can only be done by the relevant State. However,
all coastal States, regardless of geology and geomorphology, are vested with
sovereign and exclusive rights to those parts of the continental shelf within
200 nm from the baselines from which the breadth of the territorial sea is
measured. By contrast, only some coastal States are vested with such sover-
eign and exclusive rights to the outer continental shelf, that is, where the
geological and geomorphological features permit such a delineation. Thus,
there is a major dierence with the continental shelf regime applicable within
200 nm from the baselines from which the breadth of the territorial sea is
measured. The delineation of the 200-nm line is not subject to any pre-
scribed procedures, similar to the procedure foreseen in LOSC Article 76(8),
to follow with regard to the delineation of the 200-nm limit. As mentioned
earlier, in order to be consistent with international law, the delineation of the
outer limits needs to be based on the recommendations of the Commission.30
One of the functions of the Commission is to faire oce de caution morale
en empchant les revendications excessives.31 It goes without saying that by
empchant les revendications excessives, the Commission has the discretion to
disagree with the outer limits of the continental shelf proposed by a coastal
State and presented in the form of a submission to the Commission. Fur-
thermore, Eiriksson has noted that nothing would preclude a State Party to
the LOSC from contesting the validity of a delineation of the outer limits of

Technical Body in a Political World, (2002) 17(3) The International Journal of Marine and
Coastal Law, 301324, at 314.
30
In the above-mentioned paper by Judge Golitsyn, reference is made to the point raised by
the International Law Associations Committee on Legal Issues of the Outer Continental
Shelf, where it is argued that [a] court or tribunal is competent to establish whether the
Commission has acted within the limits of its competence or not if the costal State con-
cerned considers that in making its recommendations the Commission erred on a question of
law or exceed its competence. See Golitsyn, op. cit., supra note 13, at 407408.
31
De Mary Mantuano, op. cit., supra note 27, at 410 (to demonstrate a moral cautiousness
by way of avoiding excessive claims, authors translation).
244 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

the continental shelf of a third State32 before the appropriate LOSC Part XV
adjudicative body, if the nal outer limits of the continental shelf undertaken
by a coastal State were not dened on the basis of the Commissions rec-
ommendations. As noted by Eiriksson, seaward demarcation of the conti-
nental shelf is not one of optional exceptions to compulsory dispute settlement
mechanisms allowed under Article 298.33
To sum up, although coastal States are vested with inherent sovereign and
exclusive rights to the continental shelf, the delineation of the outer limits of
the continental shelf is only opposable to other States if done according to
the prescribed procedures in LOSC Article 76, read in conjunction with
Annex II to the LOSC.34 In practical terms this means that the endorsement
by the Commission of the outer limits of the continental shelf proposed by a
coastal State is a prerequisite to the validity of such a delineation, because
whereas it is for the State to draw the lines; this is not to say, however, that
it is a matter for the State alone.35 In the words of the Court, the delimita-
tion of sea areas has always an international aspect; it cannot be dependent
merely upon the will of the coastal State as expressed in its municipal law,
i.e., unilaterally. Although it is true that the act of delineation or delimitation
is necessarily a unilateral act, because only the coastal State is competent to
undertake it, the validity with regards [sic] to other States depends upon

32
This issue also relates to the determination whether a State Party to the LOSC, not directly
aected by such a delineation, would be vested with locus standi to le such an application
with a LOSC Part XV dispute settlement body. Reference can be made to Nelson, who has
noted that States Parties which are not directly aected by the outer continental shelf claims
of other States Parties may be accorded the right to take public action (actio popularis) to pro-
tect the integrity of the Area; see L.D.M. Nelson, The Settlement of Disputes Arising From
Conicting Outer Continental Shelf Claims, 24 International Journal of Marine and Coastal
Law, 2009, pp. 409422, at 421.
33
Eiriksson, op. cit., supra note 21, at 258. For the sake of clarity it should be noted that
according to LOSC Article 286, any dispute concerning the interpretation or application of
the LOSC, subject to section 3 of Part XV to the LOSC, where no settlement has been
reached by non-judicial means, be submitted at the request of any party to the dispute to the
Court or relevant tribunal. However, LOSC Article 298 provides some optional exceptions
to the compulsory jurisdiction of the fora, one of which, according to LOSC Article 298(1)
(a)(i), is continental shelf disputes.
34
McDorman has quite interestingly pointed out that the nal and binding wording in
LOSC Article 76(8) does not remove from other states their capacity to reject (protest and
thus not accept) a states continental shelf outer limit [. . .] States are not deprived of their
legal right to disagree with another states established outer limit even if that outer limit
delineation can be said to be on the basis of Commission recommendations. McDorman,
op. cit., supra note 29, at 315.
35
Eiriksson, op. cit., supra note 21, at 257.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 245

international law.36 Thus it cannot be excluded that the Commission will


take dierent views than those expressed by a coastal State in its submission
to the Commission. However, as mentioned earlier, the LOSC prescribes
procedures to govern situations where the Commission and the submitting
coastal State disagree.

The Existence of a Dispute

It has been argued above that the LOSC provides a compulsory procedure
which State Parties to the LOSC shall follow in order to delineate the outer
limits of their continental shelf. Only when the State acted accordingly and
followed that procedure will such delineations be legally opposable to third
States. Bearing in mind this prerequisite procedure, which must take place
prior to any delineation of the outer limits of the continental shelf, and hav-
ing due regard to the inherency clause and the responsibilities of the Com-
mission, together with the res iudicata characteristics of a nal judgment, the
question raised here is whether an application to an international forum37 to
delimit an area of the outer continental shelf, which the Commission has not
yet nally considered, should be admissible.

Legal Dispute

Provisions on the peaceful settlement of disputes presuppose the existence


of a dispute. Article 38 of the Statute of the Court sets out the generally
accepted sources of international law and begins as follows: The Court [. . .]
is to decide in accordance with international law such disputes as are submit-
ted to it.38 According to Article 36(2) of its Statute, the Court has, under
the so-called optional clause, competence to address all legal disputes.39 A
discussion on what is a dispute can at rst sight seem superuous. Neverthe-
less, in practice the determination of the existence of a dispute is often con-
tested by the parties to an alleged dispute,40 although the word dispute does

36
ICJ, Anglo-Norwegian Fisheries Case, Judgment, ICJ Rep. 1951, p. 132.
37
Consistent with LOSC Article 287, State Parties to the LOSC are free to choose one or
more of four dierent fora that shall be vested with binding jurisdiction for the settlement of
disputes concerning the application and interpretation of the LOSC. As mentioned earlier,
coastal States may, consistent with LOSC Article 298(1)(a)(i), make an exception to the com-
pulsory jurisdiction with regard to delimitation of the continental shelf.
38
Excerpt from Article 38(1) of the Statute of the Court (emphasis added).
39
Excerpt from Article 36(2) of the Statute of the Court.
40
See C. Schreuer, What is a Legal Dispute?, (2009) 6(1) Transnational Dispute Manage-
ment, 119, at 1.
246 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

not as such need, and is hardly susceptible of, denition.41 Dictionaries


describe and cite other words which have approximately the same meaning
and despite the above unambiguous language, the denition of dispute is
not free from problems.
The Permanent Court of International Justice (Permanent Court or PCIJ)
and its successor the Court have on several occasions been invited to dene
this legal concept. In the now-famous Mavrommatis Palestine Concessions
case, the Permanent Court characterized a dispute as follows: a disagreement
on a point of law or fact, a conict of legal views or of interests between the
parties.42 Furthermore, in an advisory opinion the Court characterized the
term dispute as a situation in which the two sides held clearly opposite
views concerning the question of the performance or non-performance of
certain treaty obligations.43 Hence a dispute is a legal dispute in order to
qualify for the contentious jurisdictional requirements of the ICJ Statute.44
In the words of Sir Robert Jennings, the result, however, is not a denition
of the term dispute but an unexplained, even unacknowledged, decision to
understand dispute in this context as meaning a particular kind of dispute,
which kind is now usually called a legal dispute.45
Not only must the dispute be a legal disagreement,46 but in order to qual-
ify for the contentious jurisdictional requirements of the Court, the dispute
must not be hypothetical. The Court has on several occasions been invited to
decide this aspect. The point should be stressed that it is not a prerequisite
that any positive actions are taken by either of the parties to a dispute or that
a dispute must have escalated to a certain level in order not to be a hypothet-
ical dispute.47 In the Headquarters Agreement case, the United States argued
that because the contested measure, i.e., adopted legislation, had not yet been
implemented, there was no dispute. The Court did not accept those argu-

41
R. Jennings, Reections on the Term Dispute, in R. St. J. Macdonald (ed.), Essays in
Honour of Wang Tieya, (Martinus Nijho, The Hague, 1993), pp. 401405, at 402.
42
PCIJ, Mavrommatis Palestine Concessions (Greece v. United Kingdom), Judgment on Juris-
diction, 1924 PCIJ Rep. Ser. A, p. 11; see also Case Concerning the Northern Cameroons,
(Cameroon v. United Kingdom), Judgment, ICJ Rep. 1963, p. 27.
43
ICJ, Interpretation of Peace Treaties, Advisory Opinion, ICJ Rep. 1950, p. 74.
44
The same does not apply to advisory opinions in which the Court may, consistent with
Article 65 of the ICJ Statute, decide on any legal question; see Jennings, op. cit., supra note
41, at 401.
45
Jennings, ibid. at 402.
46
It is of interest to recall that Professor Sohn has noted no denition of legal disputes
can be made so narrow as to prevent the adjudication of disputes involving to some extent
non-legal issues. See L.B. Sohn, Exclusion of Political Disputes from Judicial Settlement,
(1944) 39 American Journal of International Law, 695700, at 698.
47
Schreuer, op. cit., supra note 40, at 11.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 247

ments, holding that [w]hile the existence of a dispute does not presuppose a
claim arising out of behaviour of or a decision by one of the parties, it in no
way requires that any contested decision must already have been carried into
eect.48 Also in the Arrest Warrant Case, the Court did not agree on the dis-
tinction between an actual arrest and the circulation of an arrest warrant and
hence, according to the Court, the issue of the arrest warrant alone already
violated the jurisdictional immunity of the Foreign Minister in question.49
It is also of special interest to refer to the State-investor International Centre
for the Settlement of Investment Disputes (ICSID) arbitration decision,
Enron v. Argentina, in which the foreign investors contested the legality of
some taxes vis--vis the international commitments of the host country. The
latter claimed that the dispute was only hypothetical because the taxes had
only been assessed and not collected. The tribunal did not accept the view of
the host country when ruling that it was mindful of the fact that once the
taxes have been assessed and the payment ordered there is a liability of the
investor irrespective of the actual collection of those amounts. This means
that a claim seeking protection under the Treaty is not hypothetical but
relates to a very specic dispute between the parties.50
It is fair to say that the Court has recognized its jurisdiction in disputes
even though the contested measure does not produce any concrete and pres-
ent legal eects. However, that does not mean that the Court has necessarily
claried legal questions in abstracto, but rather that it accepts jurisdiction
irrespective of whether the eects of a measure are current or potential. It is
not the role of any international adjudicative body, in the exercise of its con-
tentious jurisdiction, to advise parties as to what would be their rights under
a hypothetical state of facts.
The entitlement to the outer continental shelf is, as mentioned earlier,
based on geology and geomorphology. The Commission has been vested with
a role of pivotal importance in the establishment of the binding outer limits
of the continental shelf, because States Parties may only delineate the outer
limits of their continental shelves once the Commission, by way of adoption
of nal recommendations, has endorsed the proposed outer limits of the con-
tinental shelf put forward in the coastal States submissions. As a consequence
it is fair to say that to the extent overlapping claims by other coastal States

48
ICJ, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Head-
quarters Agreement of 26 June 1947, Advisory Opinion, ICJ Rep. 1988, p. 30, para. 42.
49
ICJ, Case Concerning the Arrest Warrant of 11 April 2000, Judgment, ICJ Rep. 2002, p. 30,
para. 71.
50
ICSID, Enron v. Argentina, Decision on Jurisdiction, 14 January 2004, 11 ICSID Rep.,
p. 273.
248 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

to parts of an outer continental shelf exist, a dispute regarding overlapping


claims to such an outer continental shelf is, in the technical sense, only
hypothetical until the Commission has endorsed the outer limits of the con-
tinental shelf proposed by relevant coastal States.
Some scholars seem to have taken a dierent view of the above, according
to which a coastal State that has lodged its proposed outer limits of the con-
tinental shelf with the Commission might consider using the outer limit
lines contained in the submission as provisional outer limits of its continen-
tal shelf, pending the examination of the submission by the [Commission],
because such a coastal State must be prima facie considered to have imple-
mented the relevant provisions of article 76 of the LOS Convention in good
faith.51 By the same line of thinking, nothing could, it must be presumed,
preclude an international adjudicative body from accepting the admissibil-
ity of an application to delimit the outer continental shelf irrespective of
whether the Commission vel non had adopted nal recommendations thereto.
The coastal State could, it is argued, use the outer limit lines contained
in the submission as provisional outer limits of its continental shelf, pending
the examination of the submission.52 According to this line of thinking, it
would seem that the role of the Commission is somehow literally being
reduced to declarative recommendations which would not necessarily corre-
spond to an ordinary meaning of LOSC Article 76(8) in conjunction with
Article 7 of Annex II to the LOSC. On the contrary, could it not be argued
that to accept the admissibility of an application to delimit the outer conti-
nental shelf claims prior to the adoption of nal recommendations by the
Commission would only be to advise the parties as to what their rights would
be in a hypothetical legal situation?

The Eect of a Binding Decision

It is a fundamental principle of international law that a sovereign State can


only be subjected to the jurisdiction of an international adjudicative organ if
the State in question has consented to this. By the same token, the obligation
to comply with any such judgment derives directly and exclusively from the
free choice made by those subject to their jurisdiction to submit to it; this is
the application of the norm pacta sunt servanda.53 Part XV of the LOSC is

51
A.E. Oude Elferink, Submissions of Coastal States to the CLCS in Cases of Unresolved
Land or Maritime Disputes, in Nordquist et al., op.cit., supra note 21, pp. 263285, at 274.
52
Ibid.
53
P. Couvreur, The Eectiveness of the International Court of Justice in the Peaceful Settle-
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 249

entitled Settlement of Disputes and establishes compulsory judicial proce-


dures concerning the interpretation and application of the LOSC which
entail decisions binding on States Parties to any such disputes.54
According to Article 59 of the Statute of the Court, its decisions have
binding force only on the parties to the dispute and only in respect of that
particular dispute. Furthermore, according to the rst sentence of Article 60
of the Statute of the Court, the judgement is nal and without appeal.55 It
has been pointed out that the above-mentioned provisions cover the general
characteristics of res iudicata, in which the binding nature as between them is
the res iudicata pro veritate habetur, i.e., the legal truth and the force of the
judgment are denitive and not subject to review.56 The Court has ruled that
such characteristics are specic to decisions handed down by an indepen-
dent and truly judicial body.57 The Court has characterized the underlying
rationale of the res iudicata principle as follows: Two purposes, one general,
the other specic, underlie the principle of res judicata, internationally as
nationally. First, the stability of legal relations requires that litigation come to
an end. The Courts function, according to Article 38 of its Statute, is to
decide, that is, to bring to an end such disputes as are submitted to it.
Secondly, it is in the interest of each party that an issue which has already
been adjudicated in favour of that party be not argued again.58 Furthermore,
consistent with Article 94(2) of the Rules of Procedure of the Court, the judg-
ment [. . .] shall become binding on the Parties on the day of the reading.59
The rule of nullity is based on the understanding that a judicial decision
inconsistent with the terms of reference is void owing to the ultra vires nature
of the power exercised by a court or tribunal.60 However, it follows from the
res iudicata principle that an award or judgment cannot become invalid upon

ment of International Disputes, in A.S. Muller et al. (eds.) The International Court of Justice:
Its Future Role after Fifty Years, (Martinus Nijho Publishers, The Hague/Boston/London,
1997), pp. 84116, at 105.
54
For a general overview on Part XV of the LOSC, see O.A. Adede, The Basic Structure of
the Disputes Settlement Part of the Law of the Sea Convention, (1982) 11 Ocean Develop-
ment and International Law, 125148.
55
Excerpt from Article 60 of the ICJ Statute.
56
Couvreur, op. cit., supra note 53, at 100.
57
ICJ, Eect of Awards of Compensation Made by the United Nations Administrative Body,
Advisory Opinion, ICJ Rep. 1953, p. 53.
58
ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, ICJ
Rep. 2007, p. 44, para. 116.
59
Excerpt from Article 94(2) of the ICJ Rules of Procedure.
60
K.H. Kaikobad, The Quality of Justice: Excs de Pouvoir in the Adjudication and Arbi-
tration of Territorial and Boundary Disputes, in G.S. Goodwyn-Gilland and S. Talmon
250 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

a declaration by either of the States party to the dispute. In the words of Ver-
zijl, if the allegation of nullity were admissible as the unilateral invocation
of an objective juridical situation, in no need of verication by an impartial
instance [sic], such an allegationoften a pretextwould destroy the very
bases of the arbitral solution of international controversies.61 In this context
reference may be made to the Beagle Channel award. The Court of Arbitra-
tion rejected the validity of a declaration of nullity by Argentina in respect
of the Beagle Channel award.62 The Court of Arbitration held that failing
any specic provision in the compromise agreement, any pronouncements
[towards a nullity of the award] must themselves be regarded as nullities,
devoid of all legal force or eect. They are not capable of impairing the valid-
ity of the Award, which in consequence remains fully operative and obliga-
tory in law.63 A judicial decision is hence presumed valid and neither state
can lawfully declare it null and void owing to excs or some other reason. It
follows that a declaration of this kind by a state will itself be of no legal
eect, and the litigating states will be bound to implement in good faith the
terms of the decision.64
The foregoing puts further emphasis on the question of whether an inter-
national adjudicative body should accept the admissibility of an application
to delimit the adjacent or opposite outer continental shelf prior to the adop-
tion by the Commission of the relevant nal recommendations. It is of inter-
est to reect upon the hypothetical situation in which neighbouring coastal
States A and B would have overlapping claims to an outer continental shelf.
Neither State would have made use of the jurisdictional exception in LOSC
Article 298(1)(a)(i) and coastal State B would unilaterally have instigated
LOSC Part XV judicial proceedings with an application to delimit the outer
continental shelf, prior to the adoption of any relevant recommendations
by the Commission, a request which the Court would accept. Subsequent to
the ruling of the Court, and to the nal outer continental shelf boundary
between coastal States A and B, as established by the Court, the Commission
would nd that only coastal State A was entitled to delineate its outer limits
of the outer continental shelf. The Commission would agree with coastal
State A that its entitlement to the outer continental shelf included the entire

(eds.) The Reality of International Law: Essays in Honor of Ian Brownlie, (Oxford University
Press, Oxford, 1999), pp. 293321, at 295.
61
J.H.W. Verzijl, International Law in Historical Perspective, (A.W. Sijtho, Leiden, 1976),
at 574.
62
Award of 18 April 1977: H.M.S.O. 1977, I7 International Legal Materials 1978, p. 12.
63
Communication from the Court of Arbitration sent to the parties on 8 March 1978, 52
International Legal Materials, 1978, at 282.
64
Kaikobad, op. cit., supra note 60, at 320.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 251

outer limits proposed by neighbouring coastal State B as put forward in the


submission by the latter, which would have been rejected by the Commis-
sion. This would seem to be an unfortunate legal situation in which coastal
State A could be seen to have been deprived of parts of its continental shelf,
to which it has inherent rights.
It is a rm principle of international law that boundaries are permanent,
and thus unalterable, which is normally characterized as the doctrine of nal-
ity and continuity.65 Furthermore, it would follow from the binding nature
of the above hypothetical judgment that the entitlement of coastal State A
would be delimited by the binding judicial decision regardless of whether the
delimitation was undertaken according to the understanding of an erroneous
presumption which nevertheless dictated the reasoning of the Court in order
to nd and determine an equitable solution. The scope of the national juris-
diction of coastal State A would hence be constrained, to the benet of the
Area, because the Court would have accepted the admissibility of such an
application in a disagreement between two neighbouring coastal States in
which the reasoning of the Court, was based on the understanding that both
State parties to the dispute were vested with an entitlement to the outer con-
tinental shelf, whereas coastal State B saw its proposed outer limits of the
continental shelf entirely rejected by the Commission. Coastal State A would
envisage rendering the judgment inoperative, on the basis that its inherent
rights to parts of its outer continental shelf were put at stake in the judgment
of the relevant LOSC Part XV forum, and thus extend its delineation of the
outer limits of the continental shelf, in accordance with the recommenda-
tions of the Commission, to the area which, according to the initial reason-
ing of the forum, should be allocated to coastal State B. Coastal State A
could argue that regardless of the principle of res iudicata and the binding
character of a boundary, only such limits established consistent with the pre-
scribed procedure were nal and binding. It is in this regard of interest to
reect upon the statement of the Court of Arbitration in St. Pierre & Mique-
lon, in which it recalled that only the limits of the continental shelf estab-
lished by a coastal State on the basis of these recommendations [of the
Commission] shall be nal and binding.66
As stated earlier, one of the fundamental jurisdictional requirements in
international litigation is that the disagreement between the disputing parties
must be a legal dispute within the meaning of Article 36(2) of the Statute of

65
See K.H. Kaikobad, Some Observations on the Doctrine of Continuity and Finality of
Boundaries, (1983) 54 British Yearbook of International Law, 119141.
66
Court of Arbitration, Case Concerning Delimitation of Maritime Areas Between Canada and
the French Republic (St. Pierre & Miquelon), Award of 10 June 1992, 95 ILR 645, para. 78.
252 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

the Court. By the same line of thinking, a Court or tribunal is not vested
with rights to delimit an area which is not subject to dispute, which is an
implied term of arbitral proceedings. It is true that in accordance with gen-
eral principles of arbitral procedure, a tribunal is obliged to execute the
task, especially the territorial aspects thereof, in the precise way stated in the
instrument.67 However, it would likewise seem evident that the rst task of
the Court would be to verify the entitlement of each State party to the area
supposedly subject to dispute, i.e., await the nal recommendations of the
Commission with regard to the relevant area of the outer continental shelf.
Coastal State B has not seen its proposed outer limits recognised and as a
consequence it could be argued that its claims to those parts of the outer
continental shelf were not substantiated. It could be envisaged that coastal
State A would argue that the Court had exceeded its jurisdiction because of
the fact that the claim of coastal State B was revealed to be not substantiated
and ineective, consistent with which the parts of the outer continental shelf,
subject to the operative paragraphs in the judgment of the Court, were not
subject to dispute in accordance with which the judicial decision was null
and void.68 In other words, the preliminary jurisdictional requirements for
the delimitation of the area supposedly subject to dispute would not have
been met.
According to the principle of res iudicata, a judicial decision by an interna-
tional adjudicative forum, unless the parties to the dispute decide in advance
on an appellate procedure,69 has binding eect and is not subject to appeal.
This fact does, however, not prevent the disputing parties from seeking a
revision of an international judicial decision if subsequent developments shed
light on the fact that the forum had based its reasoning on incorrect or insuf-
cient facts. In the words of the Court, res iudicata does not however mean
that, should a party to a case believe that elements have come to light subse-
quent to the decision of the Court which tend to show that the Courts con-

67
Kaikobad, op. cit., supra note 60, at 309.
68
According to Fitzmaurice, the non-ultra petita rule is not only an inevitable corollary
indeed, virtually a part of the general principle of consent of the parties as the basis of inter-
national jurisdictionit is also a necessary rule, for without it the consent principle itself
could constantly be circumvented, see G. Fitzmaurice, The Law and Procedure of the Interna-
tional Court of Justice, Vol. II, 1986, at 529, quoted by Judge Buergenthal, in his Separate
Opinion in Case Concerning Oil Platforms, Islamic Republic of Iran v. United States of America,
Judgment, ICJ Rep. 2003, p. 429, para. 8; see also ICJ, Columbian-Peruvian asylum case,
Judgment, ICJ Rep. 1950, p. 266.
69
Article 11 of Annex VII to the LOSC provides that an award shall be nal and without
appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It
shall be complied with by the parties to the dispute.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 253

clusions may have been based on incorrect or insucient facts, the decision
must remain nal, even if it is in apparent contradiction to reality. The Stat-
ute provides only for one procedure in such an event.70 Coastal State A
could apply, consistent with Article 61 of the Statute of the Court,71 for revi-
sion of the judgment, because the recourse to judicial means to delimit the
continental shelf was based on the presumption that both coastal States were
vested with entitlement to the relevant outer continental shelf. The question
would then arise whether coastal State A would be in a position to render
inoperative the above-mentioned hypothetical judgment? According to its
rm case law, when the Court is seized with an application for revision, three
cumulative criteria must be present for such an application to be admissible:
(i) the application should be based on the discovery of a fact, (ii) which must
be of such a nature as to be a decisive factor, and (iii) it should be a hitherto
unknown fact.72 In the words of the Court, an application for revision is
admissible only if each of the conditions laid down in Article 61 is satised.
If any one of them is not met, the application must not be dismissed.73 Fur-
thermore, the Court has ruled that the procedure for revision applies subject
to the restrictions stated in that Article. In the interests of the stability of
legal relations, those restrictions must be rigorously applied.74 One could say
that such recommendations by the Commission would be decisive in the
meaning of Article 61 of the Statute of the Court. However, it would be dif-
cult to infer that it would be a new fact within the meaning of the same
provision, bearing in mind the obligations incumbent on LOSC State Parties
by virtue of LOSC Article 76(8) and Article 7 of Annex II to the LOSC.
Furthermore, consistent with previous rulings by the Court, the discovery of

70
ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, ICJ Rep. 2007, p. 46, para. 120.
71
Article 61(12) reads as follows: 1. An application for revision of a judgment may be
made only when it is based upon the discovery of some fact of such a nature as to be a deci-
sive factor, which fact was, when the judgment was given, unknown to the Court and also to
the party claiming revision, always provided that such ignorance was not due to negligence.
2. The proceedings for revision shall be opened by a judgment of the Court expressly record-
ing the existence of the new fact, recognizing that it has such a character as to lay the case
open to revision, and declaring the application admissible on this ground.
72
ICJ, Application for Revision of the Judgment of 11 September 1992 in the Case concern-
ing the Land, Island and Maritime Frontier Dispute, El Salvador v. Honduras, ICJ Rep. 2003,
p. 399, para. 19.
73
ICJ, Application for Revision of the Judgment of 11 July 1996 in the Case concerning
Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Yugoslavia v. Bosnia and Herzegovina, Preliminary Objections, ICJ Rep. 2003, p. 12, para. 17.
74
ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, ICJ Rep. 2007, p. 46, para. 120.
254 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

a new fact must not be due to negligence.75 It is hard to get around the
understanding that although, as mentioned earlier, the rights to the conti-
nental shelf are inherent, there is, according to the LOSC, a burden on State
Parties to submit their proposed outer limits of the continental shelf to the
Commission and to delineate such outer limits on the basis of the nal rec-
ommendations by the Commission. Consequently, it cannot come as a sur-
prise that the outer limits of the continental shelf proposed by a coastal State
may not be accepted by the Commission. Thus at least one of the prescribed
admissibility criteria for revision of a judgment is, in such a hypothetical dis-
pute, not met, which would therefore render such an application for revision
inadmissible.
Finally, nothing could prevent the parties from agreeing to set aside such a
judgment if the outer limits proposed by one of the States party to the dis-
pute were not accommodated by the Commission. However, according to
a well-established principle of law, it is incompatible with the judicial func-
tions of the Court for either party to a dispute to impede its eectiveness. In
the words of the Permanent Court, it is certainly incompatible with the
character of the Judgements rendered by the Court and with the binding
force attached to them by Article 59 and 63, paragraph 2, of the Statute, for
the Court to render a judgement which either of the Parties may render
inoperative.76 It follows from the above ruling by the Permanent Court that
it would be inconsistent with common principles of law for coastal State A
to be able to render inoperative the judgment of the Court, provided, for
instance, that a clause was included in the terms of reference of the agree-
ment that such a judgment could be rendered inoperative subject to the rec-
ommendations of the Commission.

Judicial Findings

The Commission has only adopted a small number of recommendations


compared to the excessive workload it is faced with.77 International adjudica-
tive bodies have, however, already had the occasion to accept and decline
75
ICJ, Application for Revision and Interpretation of the Judgment of 10 December 1982
in the Case Concerning the Continental Shelf, Tunisia v. Libyan Arab Jamahiriya, ICJ Rep.
1985, pp. 206 and 213, paras. 28 and 39.
76
PCIJ, Free Zones Case, Second Phase, Order, 1930 PCIJ Ser. A, No. 24, p. 14.
77
The 10-year time frame expired for a signicant number of States Parties to the LOSC on
13 May 2009, 10 years after the adoption of the Guidelines of the Commission. Of a total
number of 51 submissions, only eight are subject to nal recommendations by the Commis-
sion and 34 submissions were submitted in 2009.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 255

jurisdiction to delimit the outer continental shelf in situations where the


Commission has not adopted relevant recommendations.

Clash with the Rights of the International Community

The dispute between Barbados and Trinidad and Tobago is of special interest
with regard to the topic discussed in this article. Barbados initiated LOSC
Part XV proceedings and an Annex VII Arbitral Tribunal was, consistent
with LOSC Part XV, constituted. One of the applications submitted by Bar-
bados to the Tribunal was to delimit the continental shelf boundary between
Barbados and Trinidad and Tobago. The respondent contested the jurisdic-
tion of the Tribunal and invited, in a subsidiary manner, the Tribunal to
delimit a maritime boundary between the Parties up to 200 nm from the
basepoints from which the territorial sea of Trinidad and Tobago is measured,
and to establish an azimuth seaward on the outer continental shelf.78 Barba-
dos argued that the Tribunal must decline any jurisdiction to address Trini-
dad and Tobagos request to delimit the outer continental shelf. In the words
of Barbados, even if the Tribunal were persuaded to consider eecting such a
novel and unfounded delimitation, it would not have jurisdiction to do so
[. . .] because any delimitation over the [outer continental shelf ] beyond 200
nautical miles would aect the rights of the international community.79
Trinidad and Tobago argued that there is no overlap between the work of the
Commission and the delimitation of the outer continental shelf, provided
the Tribunal refrains from indicating the extent of the outer continental
shelf.80 Trinidad and Tobago argued further that if the State Parties to the
LOSC were of the view that a delimitation of the outer continental shelf
could only be undertaken subsequent to the completion of the work of the
Commission, they would say so. According to Trinidad and Tobago, nothing
in the LOSC supports such a postulate. On the contrary, it argues, according
to Rule 46 of the Rules of Procedure of the Commission, the competence
with respect to matters which may arise in connection with the establishment
of the outer limits of the continental shelf rests with States.81 As a conse-
quence of the above, Trinidad and Tobago argued that there is no basis for
the Tribunal [. . .] to refrain from a complete delimitation as between the
Parties.82

78
See para. 3(c)(e) in the Counter-Memorial of Trinidad and Tobago.
79
See para. 126 in the Reply of Barbados.
80
Excerpt from para. 267 in the Counter-Memorial of Trinidad and Tobago.
81
Ibid., excerpt from para. 268.
82
Ibid., excerpt from para. 269.
256 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

By contrast with Trinidad and Tobago, Barbados argued its case according
to the understanding that beyond the limits of national jurisdiction lies the
common heritage of mankind. Part XI of the LOSC establishes a legal regime
regulating the Area, to which no State can lay claim or exercise sovereignty
or sovereign rights. It would follow, according to Barbados, that the dispute
concerns only the delimitation of maritime space within 200 nm from the
baselines of both States parties to the dispute: pending any nal and bind-
ing establishment of the limits of the [outer continental shelf ] in accordance
with the procedures prescribed in Article 76(8) of UNCLOS, the maritime
space concerned must fall within 200 nautical miles of each of the Parties.
Any delimitation beyond that maritime space would pre-judge the existence
and extent of any area of [outer continental shelf ] beyond 200 nautical miles
of the Parties, within maritime space that would otherwise be the common
heritage of mankind.83 Barbados argued further that should the Tribunal
assume jurisdiction to delimit the outer continental shelf between the parties
to the dispute, this would be equivalent to prejudic[ing] rights of the inter-
national community within that area pursuant to Part XI of UNCLOS in
a forum before which it is not a party and will not have an opportunity to
make representation.84 Such an application, according to Barbados, is inad-
missible, as the prescribed procedure in LOSC Article 76(8) would be ren-
dered inapplicable, to the possible detriment of the international community,
which was not represented at these proceedings.
The position of Barbados is to a certain extent reminiscent of the approach
taken by the Court of Arbitration in St. Pierre & Miquelon, in which it deter-
mined that it had no jurisdiction to delimit the outer continental shelf
between Canada and France. The Court of Arbitration held that: [a]ny deci-
sion by this Court recognizing or rejecting any rights of the Parties over the
continental shelf beyond 200 nautical miles, would constitute a pronounce-
ment involving a delimitation, not between the Parties but between each
one of them and the international community [. . .] This Court is not com-
petent to carry out a delimitation which aects the rights of a Party which is
not before it.85 One could accordingly say that the position taken by Barba-
dos, according to which the Tribunal cannot speculate as to the outer limits
of the continental shelf 86 and that were the Tribunal to make any indica-
tion as to the extent of the [outer continental shelf ] in this case in the way
proposed by Trinidad and Tobago, this would fundamentally interfere with

83
Excerpt from para. 137 in the Reply of Barbados.
84
Ibid., excerpt from para. 138.
85
St. Pierre & Miquelon, paras. 7879.
86
Excerpt from para. 144 in the Reply of Barbados.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 257

the core function of the CLCS under UNCLOS87 seems to be persuasive.


However, the Tribunal did not agree with Barbados and held that the dispute
between Barbados and Trinidad and Tobago included the delimitation of the
outer continental shelf, because it either forms part of, or is suciently
related to, the dispute submitted by Barbados [and] in any event there is in
law only one single continental shelf .88 The Tribunal did not elaborate
further on the reason why it did not agree with the argument raised by Bar-
bados, but contented itself with emphasizing that there is only one single
continental shelf. The Tribunal did not need to rule on the delimitation of
the outer continental shelf, because the delimitation line of the continental
shelf within 200 nm which the Tribunal has determined, is such that
between Barbados and Trinidad and Tobago, there is no single maritime
boundary beyond 200 nm.89 As a consequence, the Tribunal did not need to
further clarify the scope of its acceptance of the application to delimit the
outer continental shelf, regardless of whether the Commission had completed
its work. However, it is fair to say that, according to the Tribunal, it was not
a prerequisite that the Commission complete its relevant work prior to any
delimitation of the outer continental shelf. It is in the present context also of
further interest to refer to the Annex VII Tribunal in Guyana v. Suriname, in
which it held that it would not delimit the outer continental shelf because it
was not asked to do so: The Tribunal was not invited to delimit maritime
areas beyond 200 miles from the baselines of Guyana and Suriname [. . .]
Thus in the present case the Tribunal is not concerned with matters concern-
ing the delimitation of the outer continental shelf of the Parties.90 Conse-
quently two dierent Annex VII Tribunals seem, at the conceptual level, to
have accepted the application by two dierent coastal States to delimit the
outer continental shelf, although the relevant work of the Commission was
not completed. However, that statement should be tempered with reference
to the above-mentioned nding by the Tribunal in Guyana v. Suriname, in
which no such application was made.
It can be argued in Barbados v. Trinidad and Tobago that the Tribunal did
not perceive that the radically dierent procedure applicable to the delinea-
tion of the outer limits of the continental shelf, when compared to the delin-
eation of the 200-nm line, had any implications for its jurisdiction and
which applications it may accept, consider and include in its operative

87
Ibid., excerpt from para. 145.
88
Barbados v. Trinidad and Tobago, para. 213.
89
Ibid., para. 368.
90
Award of Annex VII Tribunal, Guyana v. Suriname, 17 September 2007, para. 353. Acces-
sible at: http://www.pca-cpa.org/showpage.asp?pag_id=1147 (last visited 5 December 2009).
258 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

section. By the same token, it can be inferred that according to the Tribunal
there is no overlap between the jurisdiction of the Tribunal and the responsi-
bilities of the Commission, because there is only one single continental shelf.
Whereas the above is to a certain extent true, bearing in mind that the Com-
mission is not a tribunal, it would however seem that such a reasoning preju-
dices the prescribed responsibilities of the Commission and stands in contrast
to general judicial principles.
It is almost a truism to state that the decision of an international adjudica-
tive body is only binding on the States parties to the dispute. Consequently
third parties are not bound by such judgments, as pointed out by Jouannet:

Puisque la dcision rendue ne lie que les parties, elle est donc pour le tiers une res
inter alios si bien quil ne peut en tirer ni droits ni obligations; il ne peut pas se voir
opposer la dcision, ni plus forte raison tre tenu de lexcuter.91

Furthermore, it should not be forgotten that the Court will not rule on an
issue when in order to do so the rights of a third party that is not before it,
have rst to be determined.92 By virtue of the fundamental principle of inter-
national law established by the Court in Monetary Gold, an international
adjudicative body will in appropriate circumstances decline to exercise the
jurisdiction conferred upon it where the legal interests of a State, not party to
the proceedings, would not only be aected by a decision but would form
the very subject-matter of the decision.93 In this context it could be argued
that the interests of the international community could be aected if an
international adjudicative body would establish the extent of the outer limits
of the continental shelf in a dispute between two neighbouring coastal States,
although the work of the Commission was not completed. It could seem that
the above question was in the mind of the Court of Arbitration in St. Pierre
& Miquelon, where it held that [t]his Court is not competent to carry out a
delimitation which aects the rights of a Party which is not before it.94 Fur-
thermore, whereas the Court has established that, in the event of proceedings

91
E. Jouannet, Limpossible protection des droits du tiers par la cour internationale de justice
dans les aaires de delimitation maritime, in Coussirat-Coustre et al., op.cit., supra note 27,
pp. 315341, at 320 (Because the judgment is only binding upon the parties to the dispute,
it is res inter alios to third parties for whom it does not create rights or obligations; the
judgment is not opposable to the third party, neither is it bound to execute it, authors
translation).
92
See ICJ, Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of
Great Britain and Northern Ireland and United States of America), ICJ Rep. 1954, p. 19.
93
Ibid., p. 32.
94
St. Pierre & Miquelon, para. 79.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 259

in which other States consider that they may be aected [such States] are
free to institute separate proceedings, or to employ the procedure of inter-
vention,95 the third party at stake for the present considerations is not neces-
sarily a State but the entire international community, and one important
representative of that community, i.e., the International Seabed Authority,
has no role nor locus standi (right to address the Court or another interna-
tional adjudicative forum on such a matter) in the determination of the
boundary between national jurisdiction and the Area.96 Some authors argue
that States Parties which are not directly aected by the outer continental
shelf claims of other States Parties may be accorded the right to take public
action (actio popularis) to protect the integrity of the Area.97 At the present
stage this possibility is hypothetical and certainly dicult to initiate, bearing
in mind the intertwined diplomatic frictions such an intervention would be
likely to trigger. However, it is rmly established that in the absence of any
compulsory intervention whereby a third State could be summoned to join
the proceedings as a party, it must be open to the Court, and indeed its
duty, to give the fullest decision it may in the circumstances of each case,
unless of course, as in the case of the [Monetary Gold ], the legal interests of
the third State98 would form the very subject-matter of a decision. It would
seem that a delimitation of the area beyond the 200-nm delineation lines of
coastal States A and B, prior to the adoption of relevant recommendations by
the Commission, could possibly form the very subject-matter of the rights of
the international community. As mentioned earlier, the raison dtre of the
Commission is not only to consider the relevant data and proposed limits
submitted by coastal States, but also, as has been argued by some authors,
although not expressly provided in Article 3 of Annex II to the LOSC, to
faire oce de caution morale en empchant les revendications excessives.99 A
delimitation by an international adjudicative forum of the outer continental
shelf prior to the adoption of nal recommendations by the Commission
would hence deviate from the prescribed procedures in the LOSC100 and can

95
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) Jurisdiction and Admissibility, ICJ Rep. 1984, p. 431.
96
F.H. Paolillo, The Institutional Arrangements for the International Seabed and their
Impact on the Evolution of International Organizations, (1984) 188 Recueil des Cours de
lAcadmie de Droit International, 135 et seq., at 190.
97
Nelson, op. cit., supra note 32, at 421.
98
ICJ, Libya v. Malta, Application by Italy for Permission to Intervene, Judgment, ICJ Rep.
1984, p. 25, para. 40.
99
De Mary Mantuano, op. cit., supra note 27, at 410.
100
Several coastal States have concluded bilateral agreements delimiting the outer continen-
tal shelf prior to lodging any submission with the Commission the validity of which is subject
260 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

reasonably be held to stand in contrast with the principles endorsed in the


LOSC. The fact that there is, to paraphrase the Annex VII Arbitral Tribunal
in Barbados v. Trinidad and Tobago, only one single continental shelf 101 is
not convincing for the present purposes.

An Azimuth, not a Terminus

It is interesting to note that the Court has on various occasions departed


from, or rather recognised limitations to, the Monetary Gold principle in
delimitation disputes. For instance, the Court has refused to consider the
existence of a tripoint with a third State as a reason for not proceeding with
the delimitation, notwithstanding the fact that the approach embraced, where
third-party rights are protected by Article 59 of the Statute, would seem
almost to have a touch of irony,102 in which sovereign rights that are oppos-
able only to one other party comes [sic] very near to a contradiction in
terms.103 Yet, in such delimitations it is usual for the precise endpoint to be
left undened in order to refrain from prejudicing the rights of third States104
and consequently the Court has deemed it possible to full its role of adjudi-
cative body while simultaneously emphasising that the judgment is only
binding on the parties inter se.
In Barbados v. Trinidad and Tobago, as mentioned earlier, the latter put
emphasis on the understanding that [t]here is no overlap between the func-
tion of the Commission and the present Tribunal, provided the Tribunal
refrains from indicating the extent of the outer continental shelf the lateral
boundary of which it delimits.105 Trinidad and Tobago did not request the
Tribunal to establish an outer limit but the establishment of a directionan
azimuth, not a terminus.106 According to this line of thinking, there would
seem to be no clash of rights between the coastal States and the international

to international law. For a comment on such delimitation agreements, see D.A. Colson,
The Delimitation of the Outer Continental Shelf Between Neighbouring States, (2003) 97
American Journal of International Law, 91107.
101
Barbados v. Trinidad and Tobago, para. 213.
102
ICJ, Dissenting Opinion of Judge Jennings in Libya v. Malta, Application by Italy for
Permission to Intervene, Judgment, ICJ Rep. 1984, p. 158, paras. 2930.
103
Ibid.
104
ICJ, Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean
Sea, Nicaragua v. Honduras, Judgment, ICJ Rep. 2007, p. 87, para. 312; see also Case Con-
cerning Continental Shelf (Tunisia / Libyan Arab Jamahiriya, Judgment, ICJ Rep. 1982, p. 91,
para. 130.
105
Excerpt from para. 267 in the Counter-Memorial of Trinidad and Tobago.
106
See para. 266 in the Counter-Memorial of Trinidad and Tobago.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 261

community, an argument with which Barbados did not align itself. When
requesting the Tribunal to draw an azimuth, Trinidad and Tobago cited exam-
ples in which international adjudicative fora, faced with potential tripoints,
nevertheless were not inhibited from proceeding with the delimitation. As
mentioned earlier, in such scenarios the Court or international tribunals
have not determined the extent of entitlement by the third State to the con-
tinental shelf. By the same token, in such situations the Court or tribunals
cannot determine the precise location of the tripoint, although the direction
of the maritime boundary over which they do have jurisdiction may be deter-
mined as between the two States.107 In Land and Maritime Boundary between
Cameroon and Nigeria, the Court was unable to determine the location of
the tripoint of Cameroon and Nigeria with Equatorial Guinea, consistent
with which the Court held that in these circumstances it could do no more
than indicate the general direction [. . .] of the boundary between the Parties
maritime areas108 towards the area of the tripoint. Furthermore, Trinidad
and Tobago argues that just as the Court in Land and Maritime Boundary
between Cameroon and Nigeria need not decide on the terminal point of the
maritime boundary between these two neighbouring coastal States, so there
is no need for this Tribunal to determine the outer limit of continental shelf
beyond 200 nm. This is a delimitation as between Trinidad and Tobago and
Barbados. It is in no way liable to interfere with the work of the Annex II
Commission.109
It could be argued that the position taken by Trinidad and Tobago would
seem to be consistent with LOSC Article 76 because it could be seen not to
prejudice the work of the Commission. Yet, such an approach is nevertheless
still likely to interfere with the tasks the LOSC has conferred on the Com-
mission. The drawing of an azimuth would presumably be placed in the
operative section of the ruling and as such its eect as res iudicata would be
valid. Only if such a forum were to rule that the validity of the outlined
azimuth would only be opposable provided that the Commission approves
the proposed outer limits of the continental shelf of both parties to the dis-
pute, could such a ruling not be vested with res iudicata characteristics. How-
ever, as mentioned earlier, such an approach would seem to contradict rm
107
Ibid., paras. 266267.
108
ICJ, Land and Maritime Boundary between Cameroon and Nigeria, (Equatorial Guinea
Intervening), Cameroon and Nigeria, ICJ Rep. 2002, p. 448, para. 307. In the Case concern-
ing Territorial and Maritime Dispute between Nicaragua and Honduras, the Court ruled in an
analogous situation that The Court may accordingly, without specifying a precise endpoint,
delimit the maritime boundary and state that it extends beyond the 82nd meridian without
aecting third-State rights. See ICJ Rep. 2007, p. 88, para. 319.
109
Excerpt from para. 267 of the Counter-Memorial of Trinidad and Tobago.
262 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

judicial principles, namely that it is incompatible with the character of the


judgements rendered by the Court and with the binding force attached to
them by Article 59 and 63, paragraph 2, of the Statute, for the Court to ren-
der a judgement which either of the Parties may render inoperative.110 Fur-
thermore, were the ndings of the Court or tribunal at rst to be inconsistent
with the recommendations of the Commission, it would seem that there
would be a legal uncertainty regarding the rights of the coastal States in ques-
tion. The situation would hence indeed be subject to an unnecessary compli-
cation. Finally in the Case concerning Territorial and Maritime Dispute between
Nicaragua and Honduras, the Court developed an interesting reasoning which
can be adduced to support the argument that international adjudicative fora
should refrain from accepting an application to determine, e.g., azimuths in
outer continental shelf disputes where the Commission has not completed its
work. After indicating that it would delimit the maritime boundary between
the States party to the dispute, without specifying a precise endpoint, in
order not to aect third-State rights, the Court ruled that it should also be
noted in this regard that in no case may the line be interpreted as extending
more than 200 nautical miles from the baselines from which the breadth of
the territorial sea is measured; any claim of continental shelf rights beyond
200 miles must be in accordance with Article 76 of UNCLOS and reviewed
by the Commission on the Limits of the Continental Shelf established
thereunder.111 It is clear that the reasoning endorsed by the Court diverges
from the approach taken by the Tribunal in Barbados v. Trinidad and Tobago.
While in the latter case the Tribunal refused to distinguish between the area
within and beyond 200 nm because of the understanding that there is only
one continental shelf, the Court evidently perceives the 200-nm limit as a
milestone with regard to its jurisdiction to establish a continental shelf bound-
ary. Its jurisdiction to accept an application to delimit the outer continental
shelf is subject to the rm determination that the Commission has adopted
nal recommendations with regard to the area of the outer continental shelf
subject to dispute.
For reasons explained above, it would seem that the approach taken by the
Court seems to be consistent with the LOSC, because the acceptance by an
international adjudicative forum of such an application could interfere with
the prescribed procedure underlying the delineation of the outer limits of the
continental shelf and possibly interfere with inherent rights of coastal States
to the continental shelf. Hence it can be argued that there is overlap between

110
PCIJ, Free Zones Case, Second Phase, Order, 1930 PCIJ Ser. A, No. 24, p. 14.
111
ICJ, Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras,
ICJ Rep. 2007, para. 319.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 263

the function of the Commission and that of an international adjudicative


forum, prior to the completion of the work of the Commission, regardless of
whether the relevant forum refrains from indicating the extent of the outer
continental shelf whose the lateral boundary it delimits. The above argument
nds thorough support in the ruling of the Court in the Case concerning Ter-
ritorial and Maritime Dispute Between Nicaragua and Honduras, which indeed
is reminiscent of the approach taken by the Court of Arbitration in St. Pierre
& Miquelon.

Completion of the Work of the Commission

Article 83 of the LOSC obligates any adjudicative body charged with delim-
iting a continental shelf to achieve an equitable solution. The Court and
arbitral tribunals have accordingly recurrently ruled that the obligation to
establish an equitable solution in a continental shelf dispute is a fundamen-
tal norm in delimitations.112 The privileged status of the equidistance method
in the law of delimitation, established by extensive jurisprudence as now
being stable and foreseeable case law,113 is based on the understanding that
the shape and location of the coastal front of coastal States determine the
extent of the title to the area within 200 nm from the baselines. In other
words, geography is the basis of the entitlement to the continental shelf
within 200 nm. By contrast, geography has no autonomous role in the deter-
mination of entitlement to the outer continental shelf.114
The Tunisia v. Libya dispute was of major importance for the ocean scien-
tist, because to a certain extent the disputing parties, consistent with the
established natural prolongation approach in the North Sea cases, built their
arguments upon a scientic and technical analysis of seabed and seaoor
features.115 The Court was to decide whether geomorphological elements were
to prevail over geological ones, as Tunisia argued that the geomorphological

112
Gulf of Maine, ICJ Rep. 1984, para. 111.
113
Whereas Article 6 of the 1958 Geneva Convention on the Continental Shelf (adopted 29
April 1958, Geneva, in force 10 June 1964, 499 UNTS 311) establishes the equidistance line
as an equitable criterion to nd an equitable solution, LOSC Article 83 is mute in this
regard.
114
See B. Kunoy, A Geometric Variable Scope of Delimitations: The Impact of a Geological
and Geomorphologic Title to the Outer Continental Shelf , (2006) 11 Austrian Review of
International and European Law, 4875.
115
D.A. Colson, Delimitation of the Outer Continental Shelf Between States with Oppo-
site or Adjacent Coasts in Nordquist et al., op. cit., supra note 21, pp. 287297, at 289.
264 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

features should prevail,116 whereas Libya maintained that the geology of the
marine depths should trump the geomorphological structure of the conti-
nental shelf.117 In its response the Court ruled that the natural prolongation
was not solely based on physical features, and hence paved the way for the
irrelevance of physical features in matters of delimitation within 200 nm.118
In Tunisia v. Libya the Court held that because of the development of the
law,119 it was necessary to examine the question of whether principles and
rules of international law applicable to the delimitation may be derived
from, or may be aected by, the new aected trends which have emerged120
because geomorphology and geology were not admitted as the tests for the
existence and recognition of the right to explore and exploit adjacent subma-
rine areas, they cannot constitute by themselves valid grounds or applicable
criteria for continental shelf delimitation.121 That rst-step approach was
followed up in the Gulf of Maine judgment, in which the Chamber of the
Court held that [l]egal title to certain maritime or submarine areas is always
and exclusively the eect of a legal operation. The same is true of the bound-
ary to the extent of the title. That boundary results from a rule of law and
not from any intrinsic merit in the purely physical fact.122 In Libya v. Malta
the Court stressed that all coastal States possess an inherent right to the con-
tinental shelf solely based on a distance criterion, before concluding that
hence no reason exists to assign any role to geological or geophysical factors
within that distance either in verifying the legal title of the States concerned
or in proceeding to delimitation as between their claims. 123 The Court held
further that because title [within 200 nm depends solely on the distance
from the coasts of the claimant States [. . .] the geological or geomorphologi-
cal characteristics of those areas are completely immaterial.124 It follows that
there is no reason why a factor which has no part to play in the establish-
ment of title should be taken into account as a relevant circumstance for the
purposes of delimitation.125 By the same line of thinking, in situations where
geography serves as the basis for the entitlement to the continental shelf up
to 200 nm from the baselines, the applicable equitable criteria and methods

116
Tunisia v. Libya, ICJ Rep. 1982, paras. 5860.
117
Ibid., paras. 5257.
118
Ibid., para. 43.
119
Ibid., para 45.
120
Ibid.
121
Separate Opinion of Judge Jimnez de Archaga, Tunisia v. Libya, ICJ Rep. 1982, para. 49.
122
Gulf of Maine, ICJ Rep. 1984, para. 103.
123
Libya v. Malta, ICJ Rep. 1984, para. 39.
124
Ibid. (emphasis added).
125
Ibid., para. 40.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 265

used to determine an equitable solution boils down to coastal geography.126


In the words of the Court: [g]eographical conguration, that is to say the
relationship between the coasts of the States in dispute, is undoubtedly a
most relevant circumstance in any continental shelf delimitation.127 Hence
the fact that the coastal States entitlement to the continental shelf within
200 nm is solely generated by the coastline implies that the relevant geo-
graphical feature to take into account in delimitations within 200 nm is
coastal geography: [t]he coast of the territory of the State is the decisive fac-
tor for title to submarine areas adjacent to it.128
Where the entitlement is based on geography, equidistance has gained a
special role. Despite rejecting any presumption of equidistance in the Anglo-
French award, the Court of Arbitration held that the combined equidistance-
special circumstance rule gives particular expression to the general norm that
[. . .] the boundary between states is to be determined on equitable principles.129
In the aftermath, equidistance has arguably gained a normative role in delim-
itation and has been reiterated in almost all subsequent cases in which it
is the starting point of the delimitation operation.130 In Libya v. Malta the
Court embraced the equidistance line as a provisional line in which it intends
to proceed by stages; thus, it will rst make a provisional delimitation [. . .]
it will then examine this provisional solution in the light of the requirements
derived from other criteria, which may call for a correction of this initial
result.131 This approach has been reiterated in the more recent cases dealt
with by the Court, Jan Mayen, Qatar v. Bahrain, and Cameroon v. Nigeria.132
Furthermore, despite only being applicable to adjacent coasts, in the Black
Sea case the Court held that the equidistance approach shall be used unless
there are compelling reasons that make this unreasonable.133

126
P. Weil, Geographic Considerations in Maritime Delimitation in J.I. Charney & L.M.
Alexander (eds.), International Maritime Boundaries, Vol I, (ASIL/Martinus Nijho Publish-
ers, Dordrecht/Boston/London, 1993), pp. 115130, at 116.
127
Separate Opinion of Judge Jimnez de Archaga, Tunisia v. Libya, ICJ Rep. 1982, para. 103.
128
Tunisia v. Libya, ICJ Rep. 1982, para. 73; Gulf of Maine, ICJ Rep. 1984, para. 205.
129
Case Concerning the Delimitation of the Continental Shelf Between the United Kingdom of
Great Britain and Northern Ireland, and the French Republic, Award of 30 June 1977, 1977
Reports of International Arbitration Awards, Vol. XVIII (Anglo-French award), para. 70.
130
Tunisia v. Libya, ICJ Rep. 1982, para. 110; Guinea v. Guinea-Bissau, Arbitral Award of 14
February 1986, Reports of International Arbitral Awards, vol. XIX, pp.148196, para. 102;
Libya v. Malta, ICJ Rep. 1984, paras. 43 and 77.
131
Ibid., para 60.
132
D.A. Colson, op. cit., supra note 115, at 101.
133
ICJ, Case concerning Maritime Delimitation in the Black Sea, Romania v. Ukraine, Judg-
ment, Rep. 2009, p. 37, para 116.
266 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

The identication of the basis of the entitlement is of quintessential


importance, as that nding dictates the applicable methods and principles to
determine an equitable solution. In Tunisia v. Libya the Court held that the
thrust of delimitation is that the process on which it operates must be consis-
tent with the title: [i]t is only the legal basis of the title to continental shelf
rightsthe mere distance from the coastwhich can be taken into account
as possibly having consequences for the claims of the Parties.134 In other
words, the Court was explicit in respect to its nding that the applicable law
in delimitations within 200 nm is dictated by geography only because inter-
national law prescribes that the methods which may be applied for the
delimitation must derive from the concept of the continental shelf itself, as
understood in international law.135 It should be noted that although geophys-
ical elements were excluded in Libya v. Malta, the Court did rule that it will
not necessarily constrain the use of geophysical and geological features in a
delimitation of the outer continental shelf. The Court held that to rely on
the concept of natural prolongation would be to overlook the fact that
where such jurisprudence appears to ascribe a role to geophysical or geologi-
cal factors in delimitation, it nds warrant [sic] for doing so in a regime of
the title itself which used to allot those factors a place which now belongs
to the past, insofar as sea-bed areas less than 200 miles from the coast are
concerned.136 As mentioned earlier, the entitlement to the outer continental
shelf diers from the entitlement to the continental shelf within 200 nm
from the baselines.137 It can therefore be argued that to rely on the geograph-
ical equitable criteria and methods in delimitations of the outer continental
shelf would be to overlook the fact that geomorphology and geology are,
together, the constitutive elements of title to the area beyond 200 nm138 It
follows that the applicable law to determine an equitable solution in outer
continental shelf disputes is likely to be ruled by principles other than the
ones established for the delimitation of the area within 200 nm. This asser-
tion nds support in the Courts ruling in Libya v. Malta, where the Court
held that when the determination of a title is disputed insofar as those areas
are situated at a distance of under 200 miles from the coast in question, title
depends solely on the distance from the coasts of the claimant States of any

134
Tunisia v. Libya, ICJ Rep. 1982, para. 48 (emphasis added).
135
Ibid., para. 36.
136
Libya v. Malta, ICJ Rep. 1984, para. 40 (emphasis added).
137
In Tunisia v. Libya the Court held that the distance of 200 [nm] is in certain circum-
stances the basis of the title of a coastal State, ICJ Rep. 1982, para. 47 (emphasis added).
138
B. Kunoy, op. cit., supra note 114, at 6163.
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 267

areas of seabed claimed by way of continental shelf.139 Hence already in


1985 the Court acknowledged that its delimitation principles, embraced on
the basis of the emergence of a new law, were only to apply to delimitations
within 200 nm.140 Furthermore, the Chamber of the Court in Gulf of Maine,
in which the Chamber was explicit with regard to the fact that it relied only
on geographical elements to determine the equitable solution because of the
underlying geographical entitlement to the area of dispute in question: Just
as the criteria to which they [the methods] must give eect are basically
founded upon geography, the practical methods in question can likewise
only be methods appropriate for use against a background of geography.141
By way of analogy it can be asserted that the practical methods, i.e., equitable
criteria and methods in outer continental shelf delimitations can only be
methods appropriate for use against a background of geology and geomor-
phology.142 In other words, whereas the Chamber of the Court was explicit in
Gulf of Maine with regard to the understanding that the notable disparity in
length of relevant coasts was an element constitutive of a special circumstance
that justied a correction of the equidistance line,143 the premises for the
above ruling have no merit to constitute a special circumstance in outer con-
tinental shelf delimitations, as demonstrated by the mere fact that the choice
of criteria and methods of the Court were to a certain extent predetermined144
by geography.
In determining the applicable law in Libya v. Malta, the Court embraced a
two-fold reasoning, in which it rst determined that the applicable equitable
criteria to determine an equitable solution are necessarily dictated by the
underlying legal basis of the title: The criterion is linked with the law relat-
ing to a States legal title to the continental shelf [. . .] the law applicable to
the present dispute, that is, to claims relating to continental shelves located
less than 200 miles from the coasts of the States in question, is based not on
geological or geomophological criteria, but on a criterion of distance from
the coast.145 Second, the Court held that because the title is based on geog-
raphy, it has little doubt which criterion and method it must employ at the
outset in order to achieve a provisional position in the present dispute.146 It

139
Libya v. Malta, ICJ Rep. 1984, para. 39 (emphasis added).
140
P. Weil, The Law of Maritime DelimitationsReections, (Grotius Publications, Cam-
bridge, 1989), p. 291.
141
Gulf of Maine, ICJ Rep. 1984, para. 199.
142
See B. Kunoy, op. cit., supra note 114, at 7076.
143
Gulf of Maine, ICJ Rep. (1984), para 184.
144
Ibid., para 199.
145
Libya v. Malta, ICJ Rep. 1984, para. 61.
146
Ibid.
268 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

can be concluded from the foregoing that where the basis of the title is based
on something other than geography, the geographical features are not vested
with similar equitable functions as they were in delimitations of the area
within 200 nm. In other words, to paraphrase the Courts language in Libya
v. Malta, geology and geomorphology must play an important role147 in the
determination of relevant circumstances for the purposes of determining an
equitable solution in outer continental shelf delimitations, because a delimi-
tation must be done in a manner consistent with the concepts underlying
the attribution of legal title.148
It could be argued that a provisional equidistance line in outer continental
shelf delimitations would have some intrinsic merit, because, as Judge Oda
has pointed out, the equidistance method is [. . .] the equitable method par
excellence, and for this reason alone should be tried before others.149 How-
ever, instead of drawing a provisional equidistance line, which has the base-
lines from which the breadth of the territorial sea is measured as its point of
departure, after which it may be altered in the presence of special circum-
stances, a provisional equidistance line in outer continental shelf delimita-
tions could be expected to reect the accurate portion of each title to the area
subject to dispute.150 By way of analogy it would seem fair to infer that the
drawing of such a provisional line should be conceived as departing from the
foot-of-the-slope points and onwards. It is reiterated that the Commission
has characterized the foot of the continental slope as the essential feature
that serves as entitlement to the extended continental shelf 151 and that it has
been referred to as the reference baseline152 in the delineation of the outer
limits of the continental shelf. For present purposes, emphasis shall be put on
the ruling of the Court in Tunisia v. Libya, where it held that: the coast
of the territory of the State is the decisive factor for title to submarine areas
adjacent to it,153 and as a consequence: [t]he coast of each of the Parties,
therefore, constitutes the starting line from which one has to set out in order
to ascertain how far the submarine areas appertaining to each of them extend
in a seaward direction.154
The equidistance method emerged in a regime which found a warrant for
doing so and it is accordingly likely that the equidistance method will not be
147
Ibid., para 60.
148
Ibid., para 61.
149
Dissenting Opinion of Judge Oda in Tunisia v. Libya, ICJ Rep. 1982, paras. 180181.
150
B. Kunoy, op. cit., supra note 114, at 6874.
151
Guidelines, Point 5.1.1.
152
Ibid. (emphasis added).
153
Tunisia v. Libya, ICJ Rep. 1982, para 73.
154
Ibid., para 74 (emphasis added).
B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270 269

applied by way of analogy in outer continental shelf delimitations, because it


has no merit in the delineation of the outer limits of the continental shelf. By
way of analogy it could be held, to paraphrase the Court, that the foot of the
continental slope is the decisive factor for title155 to the outer continental
shelf and consequently the foot of the continental slope of the Parties, there-
fore, constitutes the starting line from which one has to set out in order to
ascertain156 the extent of the natural prolongation of the territory of one
State. A provisional line according to such premises would be consistent with
the underlying basis of the entitlement to the outer continental shelf and
therefore in compliance with the thrust of delimitation, namely that [i]t is
only the legal basis of the title to continental shelf rights [. . .] which can be
taken into account as possibly having consequences for the claims of the
Parities.157 Such reference points, duly recommended by the Commission,
will only be accessible once the Commission has adopted its nal recommen-
dations in question. Consequently, bearing in mind that the legal basis of
title remains central to the idea of an equitable result,158 an international
adjudicative forum would, except if it were requested to decide a dispute ex
aequo et bono, need some insight into the prevailing geological circumstances,
as reected in the recommendations of the Commission, in order to deter-
mine an equitable solution to a dispute concerning delimitation of the outer
continental shelf, because entitlement to the outer continental shelf is solely
based on geology and geomorphology. Were the Court or a tribunal to accept
the admissibility of an application to delimit the outer continental shelf, or
establish an azimuth, prior to the adoption of the relevant and nal recom-
mendations of the Commission, it could be assumed that such fora would
adjudge and determine an equitable solution on the basis of non-veried
equitable criteria.
In conclusion it is submitted that the entitlement to the outer continental
shelf is based on geology and geomorphology and new equitable principles
will consequently emerge. These will partially be based on the deliberations
of the Commission, parts of which will only be available upon the adoption
of the recommendations by the Commission. In other words, it is only upon
the adoption of such nal recommendations that the prevailing geological and
geomorphological parameters, dictating the extent of the entitlement to the

155
Ibid., para 73.
156
Ibid., para 74.
157
Ibid., para 48.
158
L. Legault, B. Hankey, Method, Oppositeness and Adjacency, and Proportionality in
Maritime Boundary Delimitation, in Charney & Alexander, op. cit., supra note 126, pp.
203242, at 206.
270 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237270

outer continental shelf, will be accessible. Thus, due to the inextricable link
between title and delimitation, it would seem to contradict rm delimitation
principles of law of the sea were an international adjudicative forum to accept
the admissibility of an application to delimit the outer continental shelf prior
to the adoption of the nal recommendations by the Commission.

Conclusion

It is a rm principle of international law that coastal States have inherent


rights to the continental shelf. However, the inherency doctrine notwith-
standing, the burden is on coastal States to submit relevant information to
the Commission. Only delineations that are based on the recommendations
are nal and binding. This procedure is prescribed in the LOSC.
It is not the role of an international adjudicative body, in the exercise of
its contentious jurisdiction, to advise parties on what would be their rights
under a hypothetical state of facts. Bearing in mind the binding nature of
judicial decisions and the importance international law attaches to the judi-
cial principle of res iudicata, it is clear that it can have unforeseen implica-
tions were international adjudicative fora to accept the admissibility of an
application to delimit or establish an azimuth in outer continental shelf dis-
putes, prior to the completion of the work of the Commission. Although the
process of delineation of the outer limits of the continental shelf is a unilat-
eral act by coastal States and is separate compared to the delimitation, these
two operations are intertwined and it could aect the holistic application of
the LOSC should international adjudicative bodies accept to delimit wholly
or partly the outer continental shelf in the absence of any recommendations
of the Commission. Hence, it is concluded that the establishment of the
outer limits of the continental shelf, to which there are overlapping claims, is
subject to a two-step tango in which the recommendations of the Commis-
sion and a delimitation undertaken by an international adjudicative body are
not only two separate steps, but also temporally dierentiated, in that the
second step should only be taken subsequent to the rst step.
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