12 - The Delimitation of the Continental Shelf beyond 200 nm

Summary

This chapter examines the procedural issues in the relationship between delimitation of the continental shelf beyond 200 nm and the procedure to determine the outer limits of the continental shelf in accordance with article 76 of the LOSC. The principal procedural issue relates to whether an international court or tribunal has the jurisdiction to delimit the continental shelf beyond 200 nm and if there is any reason why the court or tribunal should refrain from exercising such jurisdiction. The chapter considers the relevant case law, from Canada/France to the preliminary objections phase in Somalia v. Kenya. It discusses the difference between delimitation and delineation, and raises the question whether entitlement to the continental shelf beyond 200 nm is a prerequisite for delimitation of the said area. Although the practice of courts and tribunals has not been entirely consistent, it seems that the most recent jurisprudence is arriving at a more uniform interpretation of the relationship between article 76 and 83, concluding that coastal States are not required to establish OCS  limits in accordance with Article 76(8) prior to the delimitation of the continental shelf beyond 200 nm. However, a number of other factors may affect court’s and tribunal’s  willingness to undertake delimitation beyond 200 nm.