THE INTERNATIONAL JOURNAL OF

MARINE
AND COASTAL
The International Journal of LAW
Marine and Coastal Law 25 (2010) 237–270 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

Bjørn Kunoy*
Legal Adviser, Ministry of Foreign Affairs, 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 affect 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 scientific 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) 237–270

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 final and binding.4
In other words, it is a prerequisite for a State Party to the LOSC to submit
such scientific 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 first 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 difficulties 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 Commission’s Scientific 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 Scientific 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 satisfied 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) 237–270 239

sion of a submission and a delimitation of the same area by an international
adjudicative body are two different operations. Notwithstanding the above,
it is difficult 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 scientific terms in a legal context which at times
departs significantly from accepted scientific definitions 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 Affairs of the Kingdom of Denmark, together with the Prime
Minister of the Government of the Faroes, the Minister for Foreign Affairs of Iceland and the
Minister of Foreign Affairs 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, 103–118, 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, 401–408, at 401.

213 of Barbados v.pca-cpa. “there is in law only a single “continental shelf ” rather than an inner continental shelf and a separate extended or outer continental shelf ”. Libyan Arab Jamahiriya (Tunisia v. 87. is not consistent with international law and as a con- sequence is not opposable to other States. Toronto (2006).15 The Commission has the competence to adopt recommendations in which it embraces or rejects the outer limits proposed by a coastal State. p. 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 final recommendations by the Commission. 1984. 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. however. para. ICJ Rep. see ICJ. 15 On the validity of unilateral delimitations.”16 Bearing in mind the power of the Commission not to embrace the limits proposed by a coastal State in a sub- mission. 16 Excerpt from Article 8 of Annex II to the LOSC.cfm/cid/33> (last visited on 10 Decem- ber 2009). 87. for the sake of ease. ICJ. make a revised or new submission to the Commission. Judgment. <http://www. on a hypothetical basis. para. deviating from the prescribed procedures in Article 76(8) and Annex II to the LOSC. see International Law Association. Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Gulf of Maine). p. see para. the “coastal State shall. 292. ICJ Rep. p. 1982. acces- sible at <http://www. . Trini- dad & Tobago. Libya). 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. within a reasonable time. Trinidad & Tobago award of 11 April 2006. 11. Tunisia v. However.14 A unilateral delineation of the outer limits of the conti- nental shelf. commonly considered that this function of the Commission does not curtail the competence of States Parties to interpret the LOSC.pdf> (last visited 26 November 2009).240 B. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 the Commission. although it does not have the power to enforce its recommendations. 17 As pointed out by the Arbitral Tribunal in the Barbados v. the continental shelf beyond 200 nm will in this paper be referred to as the “outer continental shelf ”. Legal Issues of the Outer Continental Shelf. 14 It is. 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. This paper examines. 1.org/upload/files/Final%20Award. Conclusion No. To the extent that the relevant coastal State disagrees with the recommendations of the Com- mission. 66. Judgment.ila-hq-org/en/committees/index.

within or beyond 200 nm. . . Liber Amicorum Judge Shigeru Oda.N. “The Case of Disagreement Between a Coastal State and the Commission on the Limits of the Continental Shelf ”. 2. 20 Golitsyn. provided that such limits were prima facie legitimate and exercised in accordance with international law. E. Thus. “article 77 paragraph 3. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 241 Role of the Commission It is a firm 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.” 19 ICJ. p. no special legal process has to be gone through. 2002).D. [sic] does not remove from the coastal State the burden of demonstrating its entitlement”21 to the outer continental shelf. i. J. [. Sea-Bed Energy and Minerals: The International Legal Regime-Volume 1. ICJ Rep. “The Continental Shelf: Interplay of Law and Science”. in M. Moore and T. vol. 251–262. Brown. (Martinus Nijhoff Publishers. Ando et al.1238. op. here is an inherent right. Judgments. (eds. Netherlands).22 The Commission shall consider the “data and other material”23 that 18 LOSC Article 77(2) provides that the rights to the continental shelf “do not depend on occupation. Leiden/ Boston. at 258. “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. The Hague. see Eiriksson. geophysics and hydrogra- phy. coastal States shall not only submit scientific data to the Commission.). . Eiriksson. 21 G. at 31. supra note 13.. 23..H. at 401. The Continen- tal Shelf. at.) Legal and Scientific Aspects of Continental Shelf Limits. Heidar (eds. Federal Republic of Germany v. North Sea Continental Shelf Cases (Federal Republic of Germany v.”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. effective or notional. (Kluwer Law International. that this area falls within the inherency doctrine. in N. as a “claim”. but also base the delineation of the outer limits of the continental shelf on the basis of the recommendations of the Commission.e. 1235–1253. In order to exercise it. cit. ibid. Denmark. 22 Commentators do not agree on whether the exclusion of lawyers from the Commission was deliberate or an omission. Nelson. at 251. but a treaty body composed of experts in the fields of geology. 2001). L. or on any express proclamation. because these rights already exist by virtue of the inherency clause. However. The Commission is not an international adjudicative body. 2004).20 This could mean that a coastal State may unilater- ally draw the outer limits of its continental shelf and act accordingly. (Martinus Nijhoff Publishers. the Hague. pp. as pointed out by Eiriksson. pp. nor have any special legal acts to be performed. by virtue of its sovereignty over the land.M.D.] In short. 23 Excerpt from Article 3(1)(a) of Annex II to the LOSC. B. in order to constitute a final delineation of the continental shelf. Nordquist. 1969.

see SPLOS/31. “La Fixation des Dernières Limites Maritimes: La Rôle de la Commission des Limites du Plateau Continental”. 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. Carle- ton (eds.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.] provides certainty and consistency for the international community. after consideration of which such submissions will be subject to recommendations of the Commission. Continental Shelf Limits: The Scientific and Legal Interface. Taft. 399–419. paragraph 8”24 of the LOSC. para. author’s translation). (eds. other authors have pointed out that “[t]he ‘based upon’ requirement in paragraph 8 [. although unspecified. Cook and C. . It has been observed that the wording “on the basis of these recom- mendations” does give the relevant coastal State “une certaine flexibilité qu’il doit néanmoins interpréter raisonnablement”27 in order to be consistent with international law and opposable to third States. The issue was dis- cussed by the Commission and the question was put to the Meeting of States Parties to the LOSC. De Marffy Mantuano. Further. at 417 (“a certain flexibility which nevertheless should be interpreted reasonably”. in accordance with LOSC Article 76(8). Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 States Parties submit to the Commission. Smith. Oxford.. 26 This article will not examine the question whether LOSC Article 76 reflects 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. which is the wording of current Article 76(8) of the LOSC. (Oxford University Press. pp. The question was debated at the Eighth Meeting of States Parties. at 20. 25 Excerpt from Article 76(8) of the LOSC. G. McDorman.”28 Due consideration should. however. 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.” See CLCS/4. while preserving sufficient. flexibility for the coastal State. pp. Coussirat-Coustère et al.W. 29 T. Paris. 28 R. 2003). only such delineations of the outer limits of the continental shelf that are done “on the basis of [the] recommendations”25 of the Commission are final 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.J.242 B. 2000). or do they only refer to a coastal State or a State which is a State Party to the Convention. Furthermore. “Legal Aspects of the Continental Shelf ” in P.) La Mer et son Droit: Mélanges Offerts à Laurent Luccini et Jean Pierre Quéneudec. . 17–24. in V. para 52. (Pédone. the wording “taking into account” was considered prior to the agreed “on the basis of ” . in which it was concluded that the Commission should ask the UN Legal Counsel “for an opin- ion only when the problem actually arises”. 27 A. “The Role of the Commission on the Limits of the Continental Shelf: A . 12. also be given to the fact that during the negotiations of the LOSC.

However. similar to the procedure foreseen in LOSC Article 76(8). compared to the regime endorsed in the LOSC. In essence. that is. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 243 continental shelf were they only to take into account the recommendations of the Commission.”31 It goes without saying that by “empêchant les revendications excessives”. supra note 27. 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. at 410 (“to demonstrate a moral cautiousness by way of avoiding excessive claims”. only some coastal States are vested with such sover- eign and exclusive rights to the outer continental shelf. 301–324... supra note 13. author’s translation). cit. 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. 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.30 One of the functions of the Commission is to “faire office de caution morale en empêchant les revendications excessives. all coastal States. . the Commission has been assigned significant powers. Both delineations are indeed unilateral acts that can only be done by the relevant State. By contrast. op. in order to be consistent with international law. 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”. there is a major difference with the continental shelf regime applicable within 200 nm from the baselines from which the breadth of the territorial sea is measured. as mentioned earlier. 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. the delineation of the outer limits needs to be based on the recommendations of the Commission. where the geological and geomorphological features permit such a delineation. at 407–408. to follow with regard to the delineation of the 200-nm limit. in order to be opposable to third states. 30 In the above-mentioned paper by Judge Golitsyn. cit. (2002) 17(3) The International Journal of Marine and Coastal Law. Thus. Fur- thermore. B. As mentioned earlier. regardless of geology and geomorphology. delineate the outer limits of the continental shelf on the basis of the recommendations of the Commis- sion. at 314. 31 De Marffy Mantuano. op. in which coastal States shall. reference is made to the point raised by the International Law Association’s Committee on Legal Issues of the Outer Continental Shelf. The delineation of the 200-nm line is not subject to any pre- scribed procedures.” See Golitsyn.

pp. any dispute concerning the interpretation or application of the LOSC. However. read in conjunction with Annex II to the LOSC. however. LOSC Article 298 provides some optional exceptions to the compulsory jurisdiction of the fora. supra note 29. As noted by Eiriksson. 33 Eiriksson. 24 International Journal of Marine and Coastal Law. op. Nelson. is continental shelf disputes. this is not to say.. that it is a matter for the State alone. where no settlement has been reached by non-judicial means.244 B. . 35 Eiriksson. would be vested with locus standi to file such an application with a LOSC Part XV dispute settlement body. supra note 21. it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. subject to section 3 of Part XV to the LOSC.e. because only the coastal State is competent to undertake it. at 257.34 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. 34 McDorman has quite interestingly pointed out that the “final and binding” wording in LOSC Article 76(8) does not “remove from other states their capacity to reject (protest and thus not accept) a state’s continental shelf outer limit [.M.” McDorman. cit. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 the continental shelf of a third State32 before the appropriate LOSC Part XV adjudicative body. . one of which. “The Settlement of Disputes Arising From Conflicting Outer Continental Shelf Claims”. “seaward demarcation of the conti- nental shelf is not one of optional exceptions to compulsory dispute settlement mechanisms allowed under Article 298. see L. op.”35 In the words of the Court. although coastal States are vested with inherent sovereign and exclusive rights to the continental shelf. op. cit. 2009. who has noted that “States Parties which are not directly affected 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”. be submitted at the request of any party to the dispute to the Court or relevant tribunal. For the sake of clarity it should be noted that according to LOSC Article 286. 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. not directly affected by such a delineation. the “delimita- tion of sea areas has always an international aspect. at 315. unilaterally.. 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.”33 To sum up.. at 421. i.D.] States are not deprived of their legal right to disagree with another state’s established outer limit even if that outer limit delineation can be said to be on the basis of Commission recommendations. cit. Reference can be made to Nelson. if the final outer limits of the continental shelf undertaken by a coastal State were not defined “on the basis of ” the Commission’s rec- ommendations. . according to LOSC Article 298(1) (a)(i).. Although it is true that the act of delineation or delimitation is necessarily a unilateral act. at 258. 409–422. supra note 21. because whereas “it is for the State to draw the lines.

as mentioned earlier. Anglo-Norwegian Fisheries Case. the Court has. 40 See C. 1951. 37 Consistent with LOSC Article 287. 1–19. . together with the res iudicata characteristics of a final judgment. “What is a Legal Dispute?”. Neverthe- less.”36 Thus it cannot be excluded that the Commission will take different views than those expressed by a coastal State in its submission to the Commission. competence to address “all legal disputes. should be admissible. (2009) 6(1) Transnational Dispute Manage- ment. Schreuer. and hav- ing due regard to the inherency clause and the responsibilities of the Com- mission. 39 Excerpt from Article 36(2) of the Statute of the Court.40 although “the word ‘dispute’ does 36 ICJ. 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.”39 A discussion on what is a dispute can at first sight seem superfluous. Judgment.] is to decide in accordance with international law such disputes as are submit- ted to it. B. under the so-called optional clause. Article 38 of the Statute of the Court sets out the generally accepted sources of international law and begins as follows: “The Court [. However. the LOSC prescribes procedures to govern situations where the Commission and the submitting coastal State disagree. . in practice the determination of the existence of a dispute is often con- tested by the parties to an alleged dispute. As mentioned earlier. ICJ Rep. State Parties to the LOSC are free to choose one or more of four different fora that shall be vested with binding jurisdiction for the settlement of disputes concerning the application and interpretation of the LOSC. Bearing in mind this prerequisite procedure. 132. which must take place prior to any delineation of the outer limits of the continental shelf. Legal Dispute Provisions on the peaceful settlement of disputes presuppose the existence of a dispute. consistent with LOSC Article 298(1)(a)(i). Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 245 international law. make an exception to the com- pulsory jurisdiction with regard to delimitation of the continental shelf.”38 According to Article 36(2) of its Statute. which the Commission has not yet finally considered. 38 Excerpt from Article 38(1) of the Statute of the Court (emphasis added). the question raised here is whether an application to an international forum37 to delimit an area of the outer continental shelf. coastal States may. p. at 1.

ICJ Rep. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 not as such need. at 402. had not yet been implemented.”42 Furthermore.B.46 but in order to qual- ify for the contentious jurisdictional requirements of the Court. Judgment on Juris- diction. Advisory Opinion. definition. at 402. “Exclusion of Political Disputes from Judicial Settlement”.44 In the words of Sir Robert Jennings. even unacknowledged. A. see also Case Concerning the Northern Cameroons. a conflict of legal views or of interests between the parties. the definition of “dispute” is not free from problems. which kind is now usually called a ‘legal dispute’. Mavrommatis Palestine Concessions (Greece v. J. “Reflections on the Term Dispute”. 1993).”45 Not only must the dispute be a legal disagreement. 42 PCIJ. ICJ Rep.246 B. however. decision to understand dispute in this context as meaning a particular kind of dispute. and is hardly susceptible of. 74. United Kingdom). the United States argued that because the contested measure. The Court did not accept those argu- 41 R. decide “on any legal question”. United Kingdom).” See L. the dispute must not be hypothetical. The Court has on several occasions been invited to decide this aspect. (Cameroon v. op. see Jennings.. p. cit. Macdonald (ed. Essays in Honour of Wang Tieya. there was no dispute. supra note 40. is not a definition of the term ‘dispute’ but an unexplained. in R. supra note 41. 695–700. the “result. 44 The same does not apply to advisory opinions in which the Court may. p. . 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. (1944) 39 American Journal of International Law. cit. Judgment.”41 Dictionaries describe and cite other words which have approximately the same meaning and despite the above unambiguous language. St. The Permanent Court of International Justice (Permanent Court or PCIJ) and its successor the Court have on several occasions been invited to define this legal concept. consistent with Article 65 of the ICJ Statute. 401–405. 1963. p. In the now-famous Mavrommatis Palestine Concessions case.e. 46 It is of interest to recall that Professor Sohn has noted “no definition of legal disputes can be made so narrow as to prevent the adjudication of disputes involving to some extent non-legal issues. Jennings. i.”43 Hence a “dispute” is a legal dispute in order to qualify for the contentious jurisdictional requirements of the ICJ Statute. at 11. at 401. 1924 PCIJ Rep. at 698. 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. 47 Schreuer. ibid. Ser. 11. 27. the Permanent Court characterized a dispute as follows: “a disagreement on a point of law or fact.. pp. adopted legislation. (Martinus Nijhoff. 45 Jennings.. The Hague. Interpretation of Peace Treaties. 43 ICJ.). 1950. Sohn. op.

it in no way requires that any contested decision must already have been carried into effect. 71. Enron v.”48 Also in the Arrest Warrant Case. B. 1988. Advisory Opinion. in which the foreign investors contested the legality of some taxes vis-à-vis the international commitments of the host country. p. 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. Argentina. This means that a claim seeking protection under the Treaty is not hypothetical but relates to a very specific dispute between the parties. as mentioned earlier. para. the Court did not agree on the dis- tinction between an actual arrest and the circulation of an arrest warrant and hence. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 247 ments. 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. has endorsed the proposed outer limits of the con- tinental shelf put forward in the coastal States’ submissions.49 It is also of special interest to refer to the State-investor International Centre for the Settlement of Investment Disputes (ICSID) arbitration decision. that does not mean that the Court has necessarily clarified legal questions in abstracto. 50 ICSID. ICJ Rep. because States Parties may only delineate the outer limits of their continental shelves once the Commission.”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 effects. Judgment. by way of adoption of final recommendations. 11 ICSID Rep. ICJ Rep. However. but rather that it accepts jurisdiction irrespective of whether the effects of a measure are current or potential. It is not the role of any international adjudicative body. 42. to advise parties as to what would be their rights under a hypothetical state of facts. 30. the issue of the arrest warrant alone already violated the jurisdictional immunity of the Foreign Minister in question. 2002. para. in the exercise of its con- tentious jurisdiction. . Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Head- quarters Agreement of 26 June 1947. The latter claimed that the dispute was only hypothetical because the taxes had only been assessed and not collected. Case Concerning the Arrest Warrant of 11 April 2000. Enron v. 273.. The Commission has been vested with a role of pivotal importance in the establishment of the binding outer limits of the continental shelf. Argentina. As a consequence it is fair to say that to the extent overlapping claims by other coastal States 48 ICJ. based on geology and geomorphology. p. according to the Court. The entitlement to the outer continental shelf is. Decision on Jurisdiction. 14 January 2004. 30. p. 49 ICJ.

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 final recommendations thereto.”51 By the same line of thinking.” in Nordquist et al. pp. supra note 21. 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. in the technical sense. pending the examination of the submission by the [Commission]”. “Submissions of Coastal States to the CLCS in Cases of Unresolved Land or Maritime Disputes.. it is argued. nothing could. The coastal State could. only hypothetical until the Commission has endorsed the outer limits of the con- tinental shelf proposed by relevant coastal States. 53 P. 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.248 B. use “the outer limit lines contained in the submission as provisional outer limits of its continental shelf.cit. at 274. 263–285. Some scholars seem to have taken a different view of the above. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 to parts of an outer continental shelf exist. pending the examination of the submission. “The Effectiveness of the International Court of Justice in the Peaceful Settle- . 52 Ibid. this is the application of the norm pacta sunt servanda. op.”53 Part XV of the LOSC is 51 A. Couvreur.”52 According to this line of thinking. Oude Elferink. 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. 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.. it must be presumed. a dispute regarding overlapping claims to such an outer continental shelf is.E. 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 final recommendations by the Commission would only be to advise the parties as to what their rights would be in a hypothetical legal situation? The Effect 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.

its decisions have binding force only on the parties to the dispute and only in respect of that particular dispute. in A. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 249 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. the other specific.H. 56 Couvreur.A. to bring to an end “such disputes as are submitted to it”. 58 ICJ. 84–116. Bosnia and Herzegovina v. Talmon . (Martinus Nijhoff Publishers. see O.S. one general. 125–148. i. 57 ICJ. according to Article 38 of its Statute. at 105. the legal truth and the force of the judgment are definitive and not subject to review. para. supra note 53. 116.”55 It has been pointed out that the above-mentioned provisions cover the general characteristics of res iudicata. ICJ Rep. cit. Furthermore. op. 59 Excerpt from Article 94(2) of the ICJ Rules of Procedure. consistent with Article 94(2) of the Rules of Procedure of the Court. ICJ Rep. 1953. it follows from the res iudicata principle that an award or judgment cannot become invalid upon ment of International Disputes”. 60 K. pp.) The International Court of Justice: Its Future Role after Fifty Years. . (1982) 11 Ocean Develop- ment and International Law.”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.”58 Furthermore. 44. Serbia and Montenegro. Muller et al. Adede. The Court’s function. is to “decide”. 1997). Effect of Awards of Compensation Made by the United Nations Administrative Body.S. Kaikobad. Judgment. Secondly. Advisory Opinion.e. 53.. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. 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. the “judg- ment [. p. “the judgement is final and without appeal. according to the first sentence of Article 60 of the Statute of the Court.60 However. that is. p. the stability of legal relations requires that litigation come to an end. internationally as nationally. 2007. “The Quality of Justice: ‘Excès de Pouvoir ’ in the Adjudication and Arbi- tration of Territorial and Boundary Disputes”. B. underlie the principle of res judicata. 54 For a general overview on Part XV of the LOSC.”57 The Court has characterized the underlying rationale of the res iudicata principle as follows: “Two purposes..] shall become binding on the Parties on the day of the reading. in which the binding nature as between them is the res iudicata pro veritate habetur. Goodwyn-Gilland and S. 55 Excerpt from Article 60 of the ICJ Statute.54 According to Article 59 of the Statute of the Court. “The Basic Structure of the Disputes Settlement Part of the Law of the Sea Convention”.56 The Court has ruled that such characteristics are specific to decisions handed down by “an indepen- dent and truly judicial body. The Hague/Boston/London. First. at 100. in G. (eds. .

O. and the litigating states will be bound to implement in good faith the terms of the decision.”61 In this context reference may be made to the Beagle Channel award.W. 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. Oxford. Verzijl. Leiden. supra note 60. 61 J. p. a request which the Court would accept. as established by the Court. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 a declaration by either of the States party to the dispute. 52 International Legal Materials. 12. cit. (Oxford University Press. 63 Communication from the Court of Arbitration sent to the parties on 8 March 1978. and to the final outer continental shelf boundary between coastal States A and B. International Law in Historical Perspective. at 574. at 320.”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 final recommendations. It is of inter- est to reflect upon the hypothetical situation in which neighbouring coastal States A and B would have overlapping claims to an outer continental shelf.”63 A judicial decision is hence presumed valid and “neither state can lawfully declare it null and void owing to excès or some other reason.W. In the words of Ver- zijl. 1977. prior to the adoption of any relevant recommendations by the Commission. (A. 1976).) The Reality of International Law: Essays in Honor of Ian Brownlie. the Commission would find that only coastal State A was entitled to delineate its outer limits of the outer continental shelf. They are not capable of impairing the valid- ity of the Award.H. ..M. 293–321. in no need of verification by an impartial instance [sic]. I7 International Legal Materials 1978.250 B. 62 Award of 18 April 1977: H. Subsequent to the ruling of the Court. The Court of Arbitra- tion rejected the validity of a declaration of nullity by Argentina in respect of the Beagle Channel award. Sijthoff. which in consequence remains fully operative and obliga- tory in law. It follows that a declaration of this kind by a state will itself be of no legal effect. at 282. op. 64 Kaikobad.62 The Court of Arbitration held that failing any specific provision in the compromise agreement. “if the allegation of ‘nullity’ were admissible as the unilateral invocation of an objective juridical situation. devoid of all legal force or effect. at 295. such an allegation—often a pretext—would destroy the very bases of the arbitral solution of international controversies. “any pronouncements [towards a nullity of the award] must themselves be regarded as nullities. pp.S. The Commission would agree with coastal State A that its entitlement to the outer continental shelf included the entire (eds. 1978. 1999).

and thus extend its delineation of the outer limits of the continental shelf. 78. which is normally characterized as the doctrine of final- ity and continuity. “Some Observations on the Doctrine of Continuity and Finality of Boundaries”. It is in this regard of interest to reflect upon the statement of the Court of Arbitration in St. 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. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 251 outer limits proposed by neighbouring coastal State B as put forward in the submission by the latter. para. 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. The scope of the national juris- diction of coastal State A would hence be constrained. Kaikobad. 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. B. whereas coastal State B saw its proposed outer limits of the continental shelf entirely rejected by the Commission. Case Concerning Delimitation of Maritime Areas Between Canada and the French Republic (St. 66 Court of Arbitration. 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 find and determine an equitable solution. Pierre & Miquelon). 95 ILR 645. and thus unalterable.”66 As stated earlier. 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 final and binding. to which it has inherent rights. to the benefit of the Area. (1983) 54 British Yearbook of International Law. only such limits established consistent with the pre- scribed procedure were final and binding. .H. 119–141. should be allocated to coastal State B. was based on the understanding that both State parties to the dispute were vested with an entitlement to the outer con- tinental shelf. Coastal State A could argue that regardless of the principle of res iudicata and the binding character of a boundary. Pierre & Mique- lon. It is a firm principle of international law that boundaries are permanent. in accordance with the recommenda- tions of the Commission. Coastal State A would envisage rendering the judgment inoperative. to the area which. 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. which would have been rejected by the Commis- sion.65 Furthermore. Award of 10 June 1992. according to the initial reason- ing of the forum.

subject to the operative paragraphs in the judgment of the Court. i. op. for without it the consent principle itself could constantly be circumvented”.252 B. 68 According to Fitzmaurice. p. quoted by Judge Buergenthal. consistent with which the parts of the outer continental shelf.e. the “non-ultra petita rule is not only an inevitable corollary— indeed. 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- ficient facts. In the words of the Court.69 has binding effect and is not subject to appeal. This fact does. a judicial decision by an interna- tional adjudicative forum.. 1950. “a tribunal is obliged to execute the task. Fitzmaurice.”67 However. It shall be complied with by the parties to the dispute. para. at 529. ICJ Rep. Judgment. The Law and Procedure of the Interna- tional Court of Justice. II. 8. which is an implied term of arbitral proceedings. it would likewise seem evident that the first task of the Court would be to verify the entitlement of each State party to the area supposedly subject to dispute.68 In other words.” . in his Separate Opinion in Case Concerning Oil Platforms. 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 ineffective. Vol. cit. unless the parties to the dispute decide in advance on an appellate procedure. await the final recommendations of the Commission with regard to the relevant area of the outer continental shelf. 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 Court’s con- 67 Kaikobad. see also ICJ. at 309. Judgment. res iudicata does “not however mean that. in the precise way stated in the instrument. a Court or tribunal is not vested with rights to delimit an area which is not subject to dispute. By the same line of thinking. Islamic Republic of Iran v. 429. 266. 69 Article 11 of Annex VII to the LOSC provides that an “award shall be final and without appeal. especially the territorial aspects thereof. p. Columbian-Peruvian asylum case. 1986. see G.. unless the parties to the dispute have agreed in advance to an appellate procedure. 2003. supra note 60. United States of America. 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. the preliminary jurisdictional requirements for the delimitation of the area supposedly subject to dispute would not have been met. were not subject to dispute in accordance with which the judicial decision was null and void. According to the principle of res iudicata. It is true that in accordance with gen- eral principles of arbitral procedure. virtually a part of the general principle of consent of the parties as the basis of inter- national jurisdiction—it is also a necessary rule. however. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 the Court. ICJ Rep.

even if it is in apparent contradiction to reality. 71 Article 61(1–2) reads as follows: “1. El Salvador v. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. ICJ Rep. p. p. p. the application must not be dismissed. 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. 46. 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. consistent with previous rulings by the Court. In the interests of the stability of legal relations. para. 2007. 73 ICJ.”70 Coastal State A could apply. The Stat- ute provides only for one procedure in such an event. and (iii) it should be a hitherto unknown fact. 120.” 72 ICJ. ICJ Rep. Honduras. 2007. 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 firm case law. 2. ICJ Rep. However. the decision must remain final. those restrictions must be rigorously applied. 399.”73 Fur- thermore. which fact was. ICJ Rep. Bosnia and Herzegovina. “an application for revision is admissible only if each of the conditions laid down in Article 61 is satisfied. (ii) which must be of such a nature as to be a decisive factor. para. unknown to the Court and also to the party claiming revision. it would be dif- ficult to infer that it would be a new fact within the meaning of the same provision. The proceedings for revision shall be opened by a judgment of the Court expressly record- ing the existence of the new fact. Furthermore. 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. Application for Revision of the Judgment of 11 September 1992 in the Case concern- ing the Land.”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. 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. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide.72 In the words of the Court. 19. If any one of them is not met. the Court has ruled that the procedure for revision applies “subject to the restrictions stated in that Article. 74 ICJ. 120. recognizing that it has such a character as to lay the case open to revision. consistent with Article 61 of the Statute of the Court. Yugoslavia v. when the Court is seized with an application for revision. Island and Maritime Frontier Dispute. 2003. para. B. 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. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 253 clusions may have been based on incorrect or insufficient facts. and declaring the application admissible on this ground. para. Preliminary Objections. 12. the discovery of 70 ICJ. 2003. 17. . 46. p. when the judgment was given. always provided that such ignorance was not due to negligence.71 for revi- sion of the judgment.

p. In the words of the Permanent Court. Finally. Free Zones Case. However.77 International adjudica- tive bodies have.”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. 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 final rec- ommendations by the Commission.254 B. 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. 206 and 213.75 It is hard to get around the understanding that although. 76 PCIJ. Tunisia v. Application for Revision and Interpretation of the Judgment of 10 December 1982 in the Case Concerning the Continental Shelf. 1930 PCIJ Ser. Judicial Findings The Commission has only adopted a small number of recommendations compared to the excessive workload it is faced with. for the Court to render a judgement which either of the Parties may render inoperative. 28 and 39. there is. provided. Consequently. paragraph 2. A. according to the LOSC. only eight are subject to final recommendations by the Commis- sion and 34 submissions were submitted in 2009. 1985. paras. not met. . Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 a new fact must not be due to negligence. No. Second Phase. Libyan Arab Jamahiriya. in such a hypothetical dis- pute. ICJ Rep. Of a total number of 51 submissions. 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. according to a well-established principle of law. pp. of the Statute. the rights to the conti- nental shelf are inherent. it is incompatible with the judicial func- tions of the Court for either party to a dispute to impede its effectiveness. 14. already had the occasion to accept and decline 75 ICJ. 24. 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. 10 years after the adoption of the Guidelines of the Commission. Order. which would therefore render such an application for revision inadmissible. “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. however. as mentioned earlier. Thus at least one of the prescribed admissibility criteria for revision of a judgment is. 77 The 10-year time frame expired for a significant number of States Parties to the LOSC on 13 May 2009. for instance.

In the words of Barbados. “even if the Tribunal were persuaded to consider effecting such a novel and unfounded delimitation. 267 in the Counter-Memorial of Trinidad and Tobago. consistent with LOSC Part XV. nothing in the LOSC supports such a postulate. Trinidad and Tobago argued that “there is no basis for the Tribunal [. B. “provided the Tribunal refrains from indicating the extent of the outer continental shelf.”82 78 See para.”81 As a conse- quence of the above. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 255 jurisdiction to delimit the outer continental shelf in situations where the Commission has not adopted relevant recommendations. they would say so. One of the applications submitted by Bar- bados to the Tribunal was to delimit the continental shelf boundary between Barbados and Trinidad and Tobago. in a subsidiary manner. . 80 Excerpt from para. 3(c)(e) in the Counter-Memorial of Trinidad and Tobago. Barbados initiated LOSC Part XV proceedings and an Annex VII Arbitral Tribunal was. excerpt from para. it argues. according to Rule 46 of the Rules of Procedure of the Commission. . it would not have jurisdiction to do so [. “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. According to Trinidad and Tobago. 82 Ibid.] because any delimitation over the [outer continental shelf ] beyond 200 nautical miles would affect the rights of the international community. and to establish an azimuth seaward on the outer continental shelf. excerpt from para.78 Barba- dos argued that the Tribunal must decline any jurisdiction to address Trini- dad and Tobago’s request to delimit the outer continental shelf. 79 See para.”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.. . 268. . 126 in the Reply of Barbados. . 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. The respondent contested the jurisdic- tion of the Tribunal and invited. On the contrary.] to refrain from a complete delimitation as between the Parties. 81 Ibid.”79 Trinidad and Tobago argued that there is no overlap between the work of the Commission and the delimitation of the outer continental shelf.. 269. 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. constituted.

not “between the Parties” but between each one of them and the international community [. . 78–79. is inad- missible. 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. Pierre & Miquelon. this would fundamentally interfere with 83 Excerpt from para. 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. as the prescribed procedure in LOSC Article 76(8) would be ren- dered inapplicable.256 B. within maritime space that would otherwise be the common heritage of mankind”. 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. which was not represented at these proceedings. 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 final and bind- ing establishment of the limits of the [outer continental shelf ] in accordance with the procedures prescribed in Article 76(8) of UNCLOS. 144 in the Reply of Barbados. excerpt from para. 84 Ibid. paras.83 Barbados argued further that should the Tribunal assume jurisdiction to delimit the outer continental shelf between the parties to the dispute.”84 Such an application. to the possible detriment of the international community. .] This Court is not com- petent to carry out a delimitation which affects the rights of a Party which is not before it.. 86 Excerpt from para. It would follow. Pierre & Miquelon. 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. 137 in the Reply of Barbados. 138. 85 St. The position of Barbados is to a certain extent reminiscent of the approach taken by the Court of Arbitration in St. 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. according to Barbados. in which it deter- mined that it had no jurisdiction to delimit the outer continental shelf between Canada and France. would constitute a pronounce- ment involving a delimitation. to which no State can lay claim or exercise sovereignty or sovereign rights.”85 One could accordingly say that the position taken by Barba- dos. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 By contrast with Trinidad and Tobago. . the maritime space concerned must fall within 200 nautical miles of each of the Parties. according to Barbados.

regardless of whether the Commission had completed its work. 90 Award of Annex VII Tribunal. consider and include in its operative 87 Ibid. .asp?pag_id=1147 (last visited 5 December 2009). according to the Tribunal.”90 Conse- quently two different Annex VII Tribunals seem. but contented itself with emphasizing that there is only one single continental shelf. or is sufficiently related to. Trinidad and Tobago that the Tribunal did not perceive that the radically different procedure applicable to the delinea- tion of the outer limits of the continental shelf. the Tribunal did not need to further clarify the scope of its acceptance of the application to delimit the outer 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. para. because “it either forms part of. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 257 the core function of the CLCS under UNCLOS”87 seems to be persuasive. Guyana v. because the delimitation line of the continental shelf within 200 nm “which the Tribunal has determined. at the conceptual level. The Tribunal did not need to rule on the delimitation of the outer continental shelf. .] Thus in the present case the Tribunal is not concerned with matters concern- ing the delimitation of the outer continental shelf of the Parties. 89 Ibid. 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. However.. in which no such application was made. there is no single maritime boundary beyond 200 nm. 353. the dispute submitted by Barbados [and] in any event there is in law only one single “continental shelf ”.”89 As a consequence. to have accepted the application by two different coastal States to delimit the outer continental shelf. para. para. is such that between Barbados and Trinidad and Tobago. Suriname. It is in the present context also of further interest to refer to the Annex VII Tribunal in Guyana v.pca-cpa. 17 September 2007. . 368. It can be argued in Barbados v..org/showpage. However. it was not a prerequisite that the Commission complete its relevant work prior to any delimitation of the outer continental shelf. 88 Barbados v.”88 The Tribunal did not elaborate further on the reason why it did not agree with the argument raised by Bar- bados. Suriname. it is fair to say that. 213. Acces- sible at: http://www. that statement should be tempered with reference to the above-mentioned finding by the Tribunal in Guyana v. However. B. although the relevant work of the Commission was not completed. 145. Trinidad and Tobago. 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 [. Suriname. excerpt from para.

315–341.”94 Fur- thermore. para. ni à plus forte raison être tenu de l’exécuter. 79. not party to the proceedings. it is res inter alios to third parties for whom it does not create rights or obligations.” in Coussirat-Coustère et al. the judgment is not opposable to the third party. ICJ Rep. 32. because there is only one single continental shelf. 92 See ICJ. 94 St. 93 Ibid.91 Furthermore. at 320 (“Because the judgment is only binding upon the parties to the dispute. Whereas the above is to a certain extent true.258 B.. neither is it bound to execute it”. as pointed out by Jouannet: Puisque la décision rendue ne lie que les parties. Jouannet. 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. where it held that “[t]his Court is not competent to carry out a delimitation which affects the rights of a Party which is not before it.. 1954. Pierre & Miquelon. supra note 27. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 section. 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. whereas the Court has established that.. p. By the same token. Pierre & Miquelon. 19. “L’impossible protection des droits du tiers par la cour internationale de justice dans les affaires de delimitation maritime.”93 In this context it could be argued that the interests of the international community could be affected 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. elle est donc pour le tiers une res inter alios si bien qu’il ne peut en tirer ni droits ni obligations. op. . p. “would not only be affected by a decision but would form the very subject-matter of the decision. have first to be determined. it would however seem that such a reasoning preju- dices the prescribed responsibilities of the Commission and stands in contrast to general judicial principles. bearing in mind that the Com- mission is not a tribunal. in the event of proceedings 91 E. Monetary Gold Removed from Rome in 1943 (Italy v. author’s translation). It could seem that the above question was in the mind of the Court of Arbitration in St. an international adjudicative body will in appropriate circumstances decline to exercise the jurisdiction conferred upon it where the legal interests of a State. France. United Kingdom of Great Britain and Northern Ireland and United States of America). il ne peut pas se voir opposer la décision.cit. although the work of the Commission was not completed.92 By virtue of the fundamental principle of inter- national law established by the Court in Monetary Gold. Consequently third parties are not bound by such judgments. 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. pp.

op. it is firmly established that in the absence of any compulsory intervention whereby a third State could be summoned to join the proceedings as a party. or to employ the procedure of inter- vention”. and one important representative of that community. 96 F. unless of course. 1984. could possibly form the very subject-matter of the rights of the international community. “The Institutional Arrangements for the International Seabed and their Impact on the Evolution of International Organizations”. 25. “it must be open to the Court.”99 A delimitation by an international adjudicative forum of the outer continental shelf prior to the adoption of final recommendations by the Commission would hence deviate from the prescribed procedures in the LOSC100 and can 95 ICJ. p. Malta. op. (1984) 188 Recueil des Cours de l’Académie de Droit International. as in the case of the [Monetary Gold ].”97 At the present stage this possibility is hypothetical and certainly difficult to initiate. p. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. at 410..96 Some authors argue that “States Parties which are not directly affected 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.. 99 De Marffy Mantuano. cit. supra note 32. as has been argued by some authors. 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. 40. and indeed its duty. at 190. to “faire office de caution morale en empêchant les revendications excessives. to give the fullest decision it may in the circumstances of each case. at 421.95 the third party at stake for the present considerations is not neces- sarily a State but the entire international community.. B. the raison d’être of the Commission is not only to consider the relevant data and proposed limits submitted by coastal States. cit. supra note 27.. United States of America) Jurisdiction and Admissibility. ICJ Rep. It would seem that a delimitation of the area beyond the 200-nm delineation lines of coastal States A and B. bearing in mind the intertwined diplomatic frictions such an intervention would be likely to trigger. Application by Italy for Permission to Intervene. ICJ Rep. 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 . the legal interests of the third State”98 would form the very subject-matter of a decision. 97 Nelson. 135 et seq.H. However. prior to the adoption of relevant recommendations by the Commission. 431. i. 98 ICJ.e. para. As mentioned earlier. Judgment. Paolillo. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 259 in which other States “consider that they may be affected [such States] are free to institute separate proceedings. 1984. but also. although not expressly provided in Article 3 of Annex II to the LOSC. the International Seabed Authority. Libya v.

not a terminus. the Court has refused to consider the existence of a tripoint with a third State as a reason for not proceeding with the delimitation. An Azimuth. For a comment on such delimitation agreements. 106 See para. there would seem to be no clash of rights between the coastal States and the international to international law. Trinidad and Tobago. see D. (2003) 97 American Journal of International Law. Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea.A.”103 Yet. 29–30. 87. provided the Tribunal refrains from indicating the extent of the outer continental shelf the lateral boundary of which it delimits. paras. p. Trinidad and Tobago. 130.102 in which “sovereign rights that are oppos- able only to one other party comes [sic] very near to a contradiction in terms. 1984. Judgment. “The Delimitation of the Outer Continental Shelf Between Neighbouring States”. only one “single continental shelf ”101 is not convincing for the present purposes. ICJ Rep. 102 ICJ. or rather recognised limitations to. 213. para. para. Trinidad and Tobago. notwithstanding the fact that the approach embraced. the Monetary Gold principle in delimitation disputes. Malta. 91. Nicaragua v. 266 in the Counter-Memorial of Trinidad and Tobago. 103 Ibid. p. In Barbados v. 1982. Application by Italy for Permission to Intervene.”105 Trinidad and Tobago did not request the Tribunal to establish an outer limit but “the establishment of a direction—an azimuth. p. not a Terminus It is interesting to note that the Court has on various occasions departed from. Judgment. Dissenting Opinion of Judge Jennings in Libya v. “would seem almost to have a touch of irony”. For instance. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 reasonably be held to stand in contrast with the principles endorsed in the LOSC. 267 in the Counter-Memorial of Trinidad and Tobago. as mentioned earlier. 105 Excerpt from para. where third-party rights are protected by Article 59 of the Statute. see also Case Con- cerning Continental Shelf (Tunisia / Libyan Arab Jamahiriya. ICJ Rep. The fact that there is. 104 ICJ. Judgment. the latter put emphasis on the understanding that “[t]here is no overlap between the func- tion of the Commission and the present Tribunal. 91–107. 101 Barbados v. 2007. Colson. . to paraphrase the Annex VII Arbitral Tribunal in Barbados v. para.260 B. Honduras. 312. 158. ICJ Rep. in such delimitations it is usual “for the precise endpoint to be left undefined in order to refrain from prejudicing the rights of third States”104 and consequently the Court has deemed it possible to fulfil its role of adjudi- cative body while simultaneously emphasising that the judgment is only binding on the parties inter se.”106 According to this line of thinking.

When requesting the Tribunal to draw an azimuth. In the Case concern- ing Territorial and Maritime Dispute between Nicaragua and Honduras. 109 Excerpt from para. The drawing of an azimuth would presumably be placed in the operative section of the ruling and as such its effect as res iudicata would be valid.. B. could such a ruling not be vested with res iudicata characteristics. such an approach would seem to contradict firm 107 Ibid. It is in no way liable to interfere with the work of the Annex II Commission.107 In Land and Maritime Boundary between Cameroon and Nigeria. Cameroon and Nigeria. para. Furthermore.”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. . 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. such an approach is nevertheless still likely to interfere with the tasks the LOSC has conferred on the Com- mission. . Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 261 community. By the same token. 88. the Court ruled in an analogous situation that “The Court may accordingly.] of the boundary between the Parties’ maritime areas”108 towards the area of the tripoint. delimit the maritime boundary and state that it extends beyond the 82nd meridian without affecting third-State rights. consistent with which the Court held that in these circumstances it could do “no more than indicate the general direction [. in such situations the Court or tribunals cannot determine the precise location of the tripoint. nevertheless were not inhibited from proceeding with the delimitation. This is a delimitation as between Trinidad and Tobago and Barbados. 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. As mentioned earlier. without specifying a precise endpoint. para. 307. Land and Maritime Boundary between Cameroon and Nigeria. 108 ICJ. . paras. in such scenarios the Court or international tribunals have not determined the extent of entitlement by the third State to the con- tinental shelf. the Court was unable to determine the location of the tripoint of Cameroon and Nigeria with Equatorial Guinea. p. (Equatorial Guinea Intervening). Yet. 267 of the Counter-Memorial of Trinidad and Tobago. 448. How- ever. 266–267.” See ICJ Rep. faced with potential tripoints. 319. p. as mentioned earlier. an argument with which Barbados did not align itself. 2002. ICJ Rep. 2007. Trinidad and Tobago cited exam- ples in which international adjudicative fora. “so there is no need for this Tribunal to determine the outer limit of continental shelf beyond 200 nm. although the direction of the maritime boundary over which they do have jurisdiction may be deter- mined as between the two States.

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. it would seem that there would be a legal uncertainty regarding the rights of the coastal States in ques- tion. azimuths in outer continental shelf disputes where the Commission has not completed its work. for the Court to ren- der a judgement which either of the Parties may render inoperative. it would seem that the approach taken by the Court seems to be consistent with the LOSC. For reasons explained above.”111 It is clear that the reasoning endorsed by the Court diverges from the approach taken by the Tribunal in Barbados v. Finally in the Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras. 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. were the findings of the Court or tribunal at first to be inconsistent with the recommendations of the Commission. the Court evidently perceives the 200-nm limit as a milestone with regard to its jurisdiction to establish a continental shelf bound- ary. of the Statute. Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras.g. Trinidad and Tobago. 319. . 111 ICJ. p. e. paragraph 2. 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. After indicating that it would delimit the maritime boundary between the States party to the dispute. in order not to affect third-State rights. Second Phase. 2007. 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. Order. 14. Its jurisdiction to accept an application to delimit the outer continental shelf is subject to the firm determination that the Commission has adopted final recommendations with regard to the area of the outer continental shelf subject to dispute. No. A. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 judicial principles. Hence it can be argued that there is overlap between 110 PCIJ. para..”110 Fur- thermore. Free Zones Case. The situation would hence indeed be subject to an unnecessary compli- cation. ICJ Rep. 1930 PCIJ Ser. 24. 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. 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. without specifying a precise endpoint.262 B.

112 The privileged status of the equidistance method in the law of delimitation. 111. LOSC Article 83 is mute in this regard. “Delimitation of the Outer Continental Shelf Between States with Oppo- site or Adjacent Coasts” in Nordquist et al. (2006) 11 Austrian Review of International and European Law.114 The Tunisia v. The above argument finds thorough support in the ruling of the Court in the Case concerning Ter- ritorial and Maritime Dispute Between Nicaragua and Honduras. prior to the completion of the work of the Commission.. 499 UNTS 311) establishes the equidistance line as an equitable criterion to find an equitable solution. 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. regardless of whether the relevant forum refrains from indicating the extent of the outer continental shelf whose the lateral boundary it delimits. para. cit. geography has no autonomous role in the deter- mination of entitlement to the outer continental shelf. op. in force 10 June 1964. pp. 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. 113 Whereas Article 6 of the 1958 Geneva Convention on the Continental Shelf (adopted 29 April 1958. . Kunoy. “A Geometric Variable Scope of Delimitations: The Impact of a Geological and Geomorphologic Title to the Outer Continental Shelf ”. which indeed is reminiscent of the approach taken by the Court of Arbitration in St. By contrast.A. consistent with the established natural prolongation approach in the North Sea cases. In other words. ICJ Rep. Libya dispute was of major importance for the ocean scien- tist. Geneva.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. at 289. Colson. 1984. established by extensive jurisprudence as now being stable and foreseeable case law. because to a certain extent the disputing parties. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 263 the function of the Commission and that of an international adjudicative forum. 115 D. 48–75. B. as Tunisia argued that the geomorphological 112 Gulf of Maine. 114 See B. supra note 21. geography is the basis of the entitlement to the continental shelf within 200 nm. Pierre & Miquelon. built their arguments upon a scientific and technical analysis of seabed and seafloor features.115 The Court was to decide whether geomorphological elements were to prevail over geological ones.. 287–297.

The same is true of the bound- ary to the extent of the title.. 118 Ibid.”121 That first-step approach was followed up in the Gulf of Maine judgment. That boundary results from a rule of law and not from any intrinsic merit in the purely physical fact. paras. 117 Ibid.] the geological or geomorphologi- cal characteristics of those areas are completely immaterial. and hence paved the way for the irrelevance of physical features in matters of delimitation within 200 nm. Malta the Court stressed that all coastal States possess an inherent right to the con- tinental shelf solely based on a distance criterion. para.125 By the same line of thinking. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 features should prevail. Libya.116 whereas Libya maintained that the geology of the marine depths should trump the geomorphological structure of the conti- nental shelf. . ICJ Rep.117 In its response the Court ruled that the natural prolongation was not solely based on physical features.” 123 The Court held further that because “title [within 200 nm depends solely on the distance from the coasts of the claimant States [. . 39. 1982.. paras. 122 Gulf of Maine. 1984. ICJ Rep. ICJ Rep..119 it was necessary to examine the question of whether principles and rules of international law applicable to the delimitation “may be derived from. they cannot constitute by themselves valid grounds or applicable criteria for continental shelf delimitation. 121 Separate Opinion of Judge Jiménez de Aréchaga. 1982. or may be affected by. 58–60. 119 Ibid. . 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.264 B. 52–57. ICJ Rep. para. Tunisia v. Malta. 43.”122 In Libya v. para. in situations where geography serves as the basis for the entitlement to the continental shelf up to 200 nm from the baselines. 1984. 123 Libya v. para. 125 Ibid.118 In Tunisia v. Libya the Court held that because of the development of the law.”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”. Libya. para 45. 49. 120 Ibid.. the ‘new affected trends’ which have emerged”120 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. para. in which the Chamber of the Court held that “[l]egal title’ to certain maritime or submarine areas is always and exclusively the effect of a legal operation. 40. 103. the applicable equitable criteria and methods 116 Tunisia v. (emphasis added). 124 Ibid.

103. Gulf of Maine. Romania v. op. ICJ Rep. .130 In Libya v. pp. ICJ Rep. B. ICJ Rep. and the French Republic. Case concerning Maritime Delimitation in the Black Sea. 129 Case Concerning the Delimitation of the Continental Shelf Between the United Kingdom of Great Britain and Northern Ireland. the Court of Arbitration held that “the combined equidistance- special circumstance rule gives particular expression to the general norm that [. which may call for a correction of this initial result. that is to say the relationship between the coasts of the States in dispute. para 60. Libya. Colson. para. 1984. Ukraine. 1982.).”133 126 P. XVIII (Anglo-French award). 133 ICJ. 70. 132 D.A. 1982. 131 Ibid. . 102.] it will then examine this provisional solution in the light of the requirements derived from other criteria. supra note 115. at 101. thus. Guinea v. Malta. Bahrain. cit.M. Vol. Arbitral Award of 14 February 1986. equidistance has gained a special role. Despite rejecting any presumption of equidistance in the Anglo- French award. 43 and 77.”128 Where the entitlement is based on geography. Dordrecht/Boston/London. 110. .”131 This approach has been reiterated in the more recent cases dealt with by the Court. para. Weil. 1984. 127 Separate Opinion of Judge Jiménez de Aréchaga. (ASIL/Martinus Nijhoff Publish- ers.148–196.”129 In the aftermath. para. Reports of International Arbitral Awards. Alexander (eds.132 Furthermore. 73. Rep. para 116. XIX. 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.I. 115–130. vol. Libya. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 265 used to determine an equitable solution “boils down to coastal geography”. in the Black Sea case the Court held that the equidistance approach shall be used “unless there are compelling reasons that make this unreasonable. Vol I. 1993).”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. 130 Tunisia v. 128 Tunisia v. Award of 30 June 1977. and Cameroon v.] the boundary between states is to be determined on equitable principles. . at 116. . Tunisia v. it will first make a provisional delimitation [. Libya v. despite only being applicable to adjacent coasts. 1982. p. para. para. Guinea-Bissau. Malta the Court embraced the equidistance line as a provisional line in which it “intends to proceed by stages. ICJ Rep. 37.. ICJ Rep. International Maritime Boundaries. “Geographic Considerations in Maritime Delimitation” in J. pp. Qatar v. Nigeria. is undoubtedly a most relevant circumstance in any continental shelf delimitation. Jan Mayen. paras. Libya.. 1977 Reports of International Arbitration Awards. Judg- ment.126 In the words of the Court: “[g]eographical configuration. Charney & L. para. 2009. 205.

Libya. 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. Malta. . 36. op. ICJ Rep. 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. 40 (emphasis added). the Court was explicit in respect to its finding 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.”136 As mentioned earlier. at 61–63. 136 Libya v. Malta. Kunoy. insofar as sea-bed areas less than 200 miles from the coast are concerned. para. 135 Ibid. ICJ Rep. as that finding dictates the applicable methods and principles to determine an equitable solution. cit. para. 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 rights—the mere distance from the coast—which can be taken into account as possibly having consequences for the claims of the Parties. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 The identification of the basis of the entitlement is of quintessential importance.”134 In other words. as understood in international law. supra note 114. 48 (emphasis added). Malta. This asser- tion finds support in the Court’s ruling in Libya 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”. para.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. 1984. 138 B. 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.135 It should be noted that although geophys- ical elements were excluded in Libya v. 137 In Tunisia v. 1982. 47 (emphasis added). it finds 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. para. title depends solely on the distance from the coasts of the claimant States of any 134 Tunisia v. the entitlement to the outer continental shelf differs from the entitlement to the continental shelf within 200 nm from the baselines. 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..266 B.. ICJ Rep. 1982.

Malta. Malta. 143 Gulf of Maine. .”145 Second.e. (Grotius Publications. Cam- bridge. para 199. 140 P. Kunoy. 199. 1984. ICJ Rep. op. 144 Ibid. 1984.. 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.] the law applicable to the present dispute. 141 Gulf of Maine. 291. embraced on the basis of the emergence of a new law. supra note 114. is based not on geological or geomophological criteria. but on a criterion of distance from the coast. . the Chamber of the Court in Gulf of Maine. to claims relating to continental shelves located less than 200 miles from the coasts of the States in question. 39 (emphasis added). ICJ Rep. Weil. 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 effect are basically founded upon geography. B. 142 See B. ICJ Rep. were only to apply to delimitations within 200 nm.143 the premises for the above ruling have no merit to constitute a special circumstance in outer con- tinental shelf delimitations. . ICJ Rep. 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 justified a correction of the equidistance line. Malta. in which it first 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 State’s legal title to the continental shelf [. para. 1989). 145 Libya v.. as demonstrated by the mere fact that the choice of criteria and methods of the Court were to a certain extent “predetermined”144 by geography.. para.142 In other words.”141 By way of analogy it can be asserted that the practical methods. (1984).”139 Hence already in 1985 the Court acknowledged that its delimitation principles. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 267 areas of seabed claimed by way of continental shelf.”146 It 139 Libya v. para. i. In determining the applicable law in Libya v. that is. the Court embraced a two-fold reasoning. at 70–76. p. The Law of Maritime Delimitations—Reflections. 61.140 Furthermore. the Court held that because the title is based on geog- raphy. 1984. 146 Ibid. the practical methods in question can likewise only be methods appropriate for use against a background of geography. cit. para 184. equitable criteria and methods in outer continental shelf delimitations can only be methods appropriate for use against a background of geology and geomor- phology.

Libya. 1982. op. para 61.150 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. at 68–74. 148 Ibid.”148 It could be argued that a provisional equidistance line in outer continental shelf delimitations would have some intrinsic merit. because a delimi- tation must be done in a “manner consistent with the concepts underlying the attribution of legal title. For present purposes. .] the equitable method par excellence. where it held that: “the coast of the territory of the State is the decisive factor for title to submarine areas adjacent to it”. paras. Libya. Kunoy. the geographical features are not vested with similar equitable functions as they were in delimitations of the area within 200 nm. instead of drawing a provisional equidistance line. . ICJ Rep.153 and as a consequence: “[t]he coast of each of the Parties.. Libya.268 B. 180–181. geology and geomorphology must “play an important role”147 in the determination of relevant circumstances for the purposes of determining an equitable solution in outer continental shelf delimitations. para 73. 1982. ... para 74 (emphasis added). a provisional equidistance line in outer continental shelf delimita- tions could be expected to reflect the accurate portion of each title to the area subject to dispute. after which it may be altered in the presence of special circum- stances.”149 How- ever. In other words. supra note 114. because. 154 Ibid. emphasis shall be put on the ruling of the Court in Tunisia v. therefore. to paraphrase the Court’s language in Libya v. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 can be concluded from the foregoing that where the basis of the title is based on something other than geography. para 60. Point 5. 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. which has the base- lines from which the breadth of the territorial sea is measured as its point of departure. 153 Tunisia v. 150 B. ICJ Rep. (emphasis added). Malta.1. 149 Dissenting Opinion of Judge Oda in Tunisia v. as Judge Oda has pointed out.1. the “equidistance method is [. cit.. 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 baseline”152 in the delineation of the outer limits of the continental shelf. and for this reason alone should be tried before others. 151 Guidelines. 152 Ibid.”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.

. to paraphrase the Court. 203–242. Hankey. in Charney & Alexander. because it has no merit in the delineation of the outer limits of the continental shelf.158 an international adjudicative forum would. because entitlement to the outer continental shelf is solely based on geology and geomorphology. pp. 158 L. Consequently. .. supra note 126. or establish an azimuth. 156 Ibid. parts of which will only be available upon the adoption of the recommendations by the Commission. . 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 [.. These will partially be based on the deliberations of the Commission. as reflected in the recommendations of the Commission. constitutes the starting line from which one has to set out in order to ascertain”156 the extent of the natural prolongation of the territory of one State. 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. except if it were requested to decide a dispute ex aequo et bono. Oppositeness and Adjacency. prior to the adoption of the relevant and final recom- mendations of the Commission. at 206. B. 157 Ibid. By way of analogy it could be held. para 48. “Method. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 269 applied by way of analogy in outer continental shelf delimitations. In other words. para 74. duly recommended by the Commission. B. that the foot of the continental slope is the “decisive factor for title”155 to the outer continental shelf and consequently the foot of the continental slope “of the Parties. .] which can be taken into account as possibly having consequences for the claims of the Parities. and Proportionality in Maritime Boundary Delimitation”. there- fore. cit. bearing in mind that the “legal basis of title remains central to the idea of an equitable result”. it could be assumed that such fora would adjudge and determine an equitable solution on the basis of non-verified equitable criteria. op. Were the Court or a tribunal to accept the admissibility of an application to delimit the outer continental shelf. it is only upon the adoption of such final recommendations that the prevailing geological and geomorphological parameters. will only be accessible once the Commission has adopted its final recommen- dations in question. para 73.”157 Such reference points. in order to deter- mine an equitable solution to a dispute concerning delimitation of the outer continental shelf. Legault. dictating the extent of the entitlement to the 155 Ibid. need some insight into the prevailing geological circumstances..

Only delineations that are based on the recommendations are final and binding. Bearing in mind the binding nature of judicial decisions and the importance international law attaches to the judi- cial principle of res iudicata. due to the inextricable link between title and delimitation.270 B. these two operations are intertwined and it could affect 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. to advise parties on what would be their rights under a hypothetical state of facts. Thus. the burden is on coastal States to submit relevant information to the Commission. will be accessible. in that the second step should only be taken subsequent to the first step. it would seem to contradict firm 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 final recommendations by the Commission. This procedure is prescribed in the LOSC. Conclusion It is a firm principle of international law that coastal States have inherent rights to the continental shelf. Kunoy / The International Journal of Marine and Coastal Law 25 (2010) 237–270 outer continental shelf. . the inherency doctrine notwith- standing. 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. 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. However. It is not the role of an international adjudicative body. but also temporally differentiated. to which there are overlapping claims. in the exercise of its contentious jurisdiction. 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. Hence. it is concluded that the establishment of the outer limits of the continental shelf. prior to the completion of the work of the Commission.

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