27 January 2015 | CIL Seminar Series
The Establishment of Entitlement to the Outer Continental Shelf
Introduction
In international law, there is only a single continental shelf. It would normally follow that it is immaterial whether the continental shelf is within or beyond 200 nautical miles from a coastal State’s baselines, at least for the purpose of asserting rights to this area. Yet, the assertion of rights to a continental shelf beyond 200 nautical miles is governed by singular provisions that involve a treaty organ, the Commission on the Limits of the Continental Shelf (CLCS), established pursuant to Annex II to the United Nations Convention on the Law of the Sea (UNCLOS). CLCS is composed of 21 members who are recognised experts in their respective scientific fields – to the exclusion of the juridical science.
It is incumbent upon the CLCS to make recommendations that are in accordance with Article 76 of UNCLOS. This may be seen to stand as a contradiction in terms given that the continental shelf under international law is subject to a legal definition that is autonomous to the scientific components composing the notion itself. Indeed, the fulfillment of the role of the CLCS cannot be undertaken in clinical isolation to legal hermeneutics, the implication of which is that the process itself may raise challenges – ex ante and ex post.
In addition to exploring the tension between the nature and mandate of the CLCS, Dr Kunoy also discussed the precedential value of CLCS recommendations given that the proceedings are closed, and also discussed challenges that are likely to arise where judicial limitations are undertaken without the CLCS having made corresponding recommendations. His experiences liaising with the CLCS demonstrate that the procedural obligations under Article 76(8) of UNCLOS have inherent substantive foundations. Because of the précedent phenomenon in the work of the CLCS, the question becomes particularly interesting for any international lawyer because only summaries of the CLCS recommendations are disclosed, implying that all communications between submitting coastal States and the CLCS is a domaine réservé.
About the Speaker
Dr Bjørn Kunoy is Legal Adviser in the Foreign Affairs Department of the Faroe Islands. His tasks include being chief legal adviser in the finalisation of five partial submissions relating to outer continental shelf claims of the Kingdom of Denmark. Dr Kunoy was also Head of Delegation in relation to the presentation of the Faroe Islands Northern Continental Shelf to the Commission on the Limits of the Continental Shelf, which was finalised with the adoption of the recent recommendations of the Commission on the Limits of the Continental Shelf.
