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Classification of Seafloor Highs According to Legal Hermeneutics

Published online by Cambridge University Press:  17 April 2020

Bjørn KUNOY
Bjørn KUNOY*
Affiliation:
University of the Faroe Islands, Faroe [email protected]
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Abstract

The classification of seafloor highs as submarine elevations that are natural components of the continental margin is the core exercise in the application of Article 76 of UNCLOS. Its outcome determines whether the outer limits are necessarily constrained by a 350 nautical mile distance line from the baselines, or, alternatively, whether the outer limits may extend far beyond that constraint where the outer edge of the continental margin goes beyond that distance. This paper examines in depth the constitutive criteria that govern the classification of seafloor highs as submarine elevations that are natural components of the continental margin. It is concluded that the interpretation of Article 76(6) of UNCLOS is necessarily dictated by a textual approach.

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Articles
Information
Asian Journal of International Law , Volume 10 , Issue 2 , July 2020 , pp. 196 - 232
Copyright
Copyright © Asian Journal of International Law, 2020

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Footnotes

*

Adjunct Professor of International Law (University of the Faroe Islands). Doctor in Public Law (Paris Nanterre University).

References

1. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 396 (entered into force on 16 November 1994) [UNCLOS].

2. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Dissenting Opinion of Judge Oda, [1982] I.C.J. Rep. 18 at 220, para. 104.

3. There are three court/tribunal decisions in which a continental shelf delimitation line has been established in the area beyond the 200 M distance line from the baselines. However, for all of these decisions, the fora have refrained from assessing the nature of the relevant seafloor highs that generate entitlement beyond the 200 M distance line, contenting themselves to confirm that entitlement extends beyond that particular distance line and establishing a line which extends until it reaches the area or areas where third states have interests.

4. The CLCS is established pursuant to Annex II to UNCLOS. According to art. 3(1)(a) of Annex II, its object and purpose is to “consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles, and to make recommendations in accordance with Article 76”. On this issue, see KUNOY, Bjørn, “The Terms of Reference of the Commission on the Limits of the Continental Shelf: A Creeping Legal Mandate” (2012) 25 Leiden Journal of International Law 109CrossRefGoogle Scholar.

5. UNCLOS, supra note 1, art. 76(6).

6. Ibid., art. 76(5).

7. Reference is illustratively made to the recommendations of the Commission on the Limits of the Continental Shelf in regard to the submission made by Australia concerning the endorsement of the classification of the Kerguelen Plateau as a SENCCM, which resulted in outer limits extending almost 800 M from the baselines of the Australian overseas territory. See Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Australia on 15 November 2004 (adopted on 9 April 2008), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/aus04/aus_summary_of_recommendations.pdf>.

8. Art, 76(6) of UNCLOS provides that “on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured”.

9. UNCLOS, supra note 1, art. 76(6).

10. Ibid.

11. Art. 31(1) of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) [Vienna Convention] provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”

12. Art. 32 of the Vienna Convention provides:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

13. The International Law Commission [ILC] in its considerations of the draft articles that resulted in the Vienna Convention deliberately decided not to predetermine which documents were constitutive of travaux préparatoires and preferred to leave that decision to the cirumstances of each case. See International Law Commission, Yearbook of the International Law Commission, 1966, Vol. I (New York: United Nations Publications, 1966) at 199–201Google Scholar.

14. While art. 31(1) of the Vienna Convention refers to a “rule” in the singular, reference is made here to “rules” in the plural on the understanding that art. 33 and the means referred to in art. 32 can also be considered as rules.

15. Geneva Convention on the Continental Shelf, 29 April 1958, 499 U.N.T.S. 311 (entered into force 10 June 1964) [Geneva Convention].

16. The ICJ has in numerous cases observed that arts. 31 and 32 of the Vienna Convention reflect international customary law. See Maritime Dispute (Peru v. Chile), Judgment, [2014] I.C.J. Rep. 3 at 28, para. 57; Genocide Convention (Bosnia v. Serbia), Judgment, [2007] I.C.J. Rep. 43 at 110, para. 160; Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, [2002] I.C.J. Rep. 625 at 645, para. 37; Case Concerning Kasikilil Sedudu Island (Botswana/Namibia), Judgment, [1999] I.C.J. Rep. 1045 at 1059, para. 18; Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, [1994] I.C.J. Rep. 6 at 21, para. 41.

17. It follows from the travaux préparatoires that the use of a singular rule rather than several rules was a conscious and deliberate choice: “the [ILC] desired to emphasize that the the process of interpretation is a unity and that the provisions of the article form a single, closely integrated rule.” See commentary to art. 28 in International Law Commission, Yearbook of the International Law Commission, 1966, Vol. II (New York: United Nations Publications, 1966) at 222–3Google Scholar.

18. Vienna Convention, supra note 11, art. 31(1).

19. Prosecutor v. Slobodan Miloševic, I.C.T.Y. Case No. IT-02-54-T, Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, at para. 31, online: ICTY <https://www.icty.org/x/cases/slobodan_milosevic/tdec/en/040922.htm>.

20. Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad, supra note 16 at 21–2, para. 41.

21. Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, [1950] I.C.J. Rep. 4 at 8.

22. For the purpose of this paper, the notions “construction” and “interpretation” are used interchangeably. On this issue, see SOLUM, Lawrence B., “The Interpretation-Construction Distinction” (2010) 27 Constitutional Commentary 95Google Scholar.

23. UNCLOS, supra note 1, art. 76(3).

24. See also point 6.1.5 of the Guidelines, which stresses that:

Article 76, paragraph 1, which defines the legal concept of the continental shelf by means of a reference to the outer edge of the continental margin, provides a measure of the current gap between the juridical and the scientific use of terms.

Commission on the Limits of the Continental Shelf, Scientific & Technical Guidelines of the Commission on the Limits of the Continental Shelf, 13 May 1999, UN Doc. CLCS/11 (1999) [S&TG].

25. UNCLOS, supra note 1, art.76(4)(a)(i)–(ii).

26. S&TG, supra note 24. Consistent with point 5.1.1 of the S&TG:

[T]he foot of the continental slope is an essential feature that serves as the basis for entitlement to the extended continental shelf … [a]ccording to paragraph 4(a)(i–ii), it is the reference baseline from which the breadths of the limits specified by formulae rules are measured.

27. By the same token, the application of art. 76(4)(a)(i)–(ii) does not necessarily encapsulate the entire scientific margin within the breadth of the legal continental margin.

28. UNCLOS, supra note 1, art. 76(4)(b).

29. Acccording to the CLCS, it considers:

[T]he determination of the foot of the continental slope when evidence to the contrary to the general rule is invoked, as a provision with the character of an exception to the rule. This provision not only does not oppose, but in fact complements, the general rule established by the determination of the foot of the continental slope as the point of maximum change in the gradient at its base. Both approaches aim to find the foot of the continental slope at its base.

See S&TG, supra note 24 at point 6.2.1.

30. However, in her Separate Opinion in the Territorial and Maritime Dispute (Nicaragua v. Colombia) case, Judge Joan E. Donoghue held: “Unlike the existence of an entitlement to continental shelf based on the distance criterion, the existence of a continental shelf beyond 200 nautical miles is a question of fact that turns on geology and geomorphology.” See Territorial and Maritime Dispute (Nicaragua v. Colombia), Separate Opinion of Judge Donoghue, [2012] I.C.J. Rep. 624 at 752, para. 4. (emphasis added).

31. UNCLOS, supra note 1, art. 76(3).

32. Official Records of the Third United Nations Conference on the Law of the Sea, Vol. VIII (Informal Composite Negotiating Text, Revision 1), UN Doc. A/CONF.62/WP.10/Rev.1 (1982).

33. Official Records of the Third United Nations Conference on the Law of the Sea, Vol. VIII (Informal Composite Negotiating Text, Revision 1), UN Doc. A/CONF.62/WP.10/Rev.3 (1982).

34. SINCLAIR, Ian M., The Vienna Convention on the Law of the Treaties, 2nd ed. (Manchester: Manchester University Press, 1984) at 115Google Scholar.

35. Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by the United Kingdom of Great Britain and Northern Ireland in Respect of Ascension Island on 9 May 2008 (adopted on 15 April 2010) at para. 23(iii), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/gbr08/gbr_asc_isl_rec_summ.pdf>.

36. The pivotal statement of the CLCS on this particular understanding appears in the recommendations of the Commission on the Limits of the Continental Shelf to Denmark, in which it held that:

[S]ince the Ægir Ridge is morphologically continuous with the continental margin north of the Faroe Islands … yet is an extinct seafloor spreading ridge that is geologically different from the landmass of the Faroe Islands, it is a submarine ridge in the meaning of Article 76, paragraph 6, of the Convention.

See Commission on the Limits of the Continental Shelf, Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Partial Submission Made by the Government of the Kingdom of Denmark together with the Government of the Faroes in Respect of the Continental Shelf North of the Faroe Islands on 29 April 2009 (adopted on 12 March 2014) at para. 34, online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/dnk28_09/2014_03_14_SCDNK_REC_COM_20140521.pdf>. The morphological approach is also apparent from the CLCS's Summary of the Recommendations to the United Kingdom in respect of Ascension Island, where it held that “the existence of a continental slope requires the existence of a distinct morphological feature rising from the level of the continental rise or the deep ocean floor up to the continental shelf of the land mass of the coastal state”. See ibid., at para. 23(iii). However, this does not necessarily mean that geology has no role under art. 76, in particular, para. 6.

37. Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by the Cook Islands in Respect of the Manihiki Plateau on 16 April 2009 (adopted on 19 August 2016), online: UN <https://www.un.org/depts/los/clcs_new/submissions_files/cok23_09/2016_08_19_com_sumrec_cok.pdf>.

38. Ibid., at para. 53.

39. Ibid., at para. 58.

40. See MØRK, Finn, “Classification of Seafloor Highs in Accordance With Article 76 of UNCLOS—Consequences of the Commission on the Limits of the Continental Shelf Recent Modifications of Its Interpretations” (2018) 49 Ocean Development & International Law at 368–92CrossRefGoogle Scholar.

41. Commission on the Limits of the Continental Shelf, supra note 37 at para. 80.

42. For an illustrative understanding, see S&TG, supra note 24 at point 5.4.6.

43. See in particular Commission on the Limits of the Continental Shelf, supra note 35 at paras. 22–3.

44. Further, in the Bay of Bengal case, ITLOS rejected the argument put forward by the applicant in accordance with which the respondent was deprived of entitlement beyond 200 M from the baselines because of discontinuous geology. According to ITLOS, it “cannot accept Bangladesh's contention that, by reason of the significant geological discontinuity dividing the Burma plate from the Indian plate, Myanmar is not entitled to a continental shelf beyond 200 [M]”. Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment, 14 March 2014, ITLOS, at para. 438.

45. Ibid., at para. 435.

46. Vienna Convention, supra note 11, art. 32.

47. See PELLET, Alain, “Canons of Interpretation under the Vienna Convention” in KLINGLER, Joseph, PARKHOMENKO, Yuri, and SALONIDIS, Constantinos, eds., Between the Lines of the Vienna Convention? Canons and Other Principles of Interpretation in Public International Law (Zuidpoolsingel: Wolters Kluwer, 2018), at 9Google Scholar.

48. See Chang-fa, LO, Treaty Interpretation under the Vienna Convention on the Law of Treaties: A New Round of Codification (Berlin: Springer, 2017) at 242Google Scholar.

49. According to Olivier Dörr:

[I]n the context of the Vienna rules, “means of interpretation” appears to refer to material or substantive matters to be taken into consideration, rather than to general interpretative principles or techniques. [Article 32] cannot be assumed to refer to principles outside the general rule of interpretation.

See DÖRR, Olivier, “Article 32” in DÖRR, Olivier and SCHMALENBACH, Kirsten, eds., Vienna Convention on the Law of the Treaties: A Commentary (Berlin: Springer, 2012), at 580CrossRefGoogle Scholar.

50. The International Law Commission observed that art. 32 “does not provide for alternative, autonomous means of interpretation but only for means to supplement an interpretation governed by the [general rule of interpretation]”. International Law Commission, Yearbook of the International Law Commission, 1964, Vol. II (New York: United Nations Publications, 1964) at 205, para. 16Google Scholar.

51. Vienna Convention, supra note 11, art. 32.

52. Polish Postal Service in Danzig, Advisory Opinion, [1925] P.C.I.J. Series B, No. 11 at 39; Competence of the General Assembly for the Admission of a State to the United Nations, supra note 21 at 8. In fact, the question of whether the criteria in paragraphs (a) and (b) should be retained in the draft project of articles was subject to lengthy discussions. The Special Rapporteur even opined with regard to the latter that, although it would rarely become relevant, there was nevertheless a preference for retaining it as:

In practice, cases in which interpretation in the light of the objects and purposes of the treaty led to a manifestly absurd or unreasonable result were rare, but they could occur and should be covered. He had in mind, for instance, a drafting error which might give, as a matter of language, a perfectly possible interpretation, but one which was “absurd” in the light of the object of the particular treaty.

See International Law Commission, supra note 13 at 206, para. 39.

53. See CORTEN, Olivier, Ĺutilisation Du ‘Raisonable’ Par Le Juge International (Brussels: Bruylant, 1997) at 53Google Scholar.

54. International Law Commission, supra note 13 at 206, para. 39.

55. The restrictive use of travaux préparatoires has a long track record. In the Lotus Judgment, the Permanent Court of International Justice attributed a mere subsidiary value to the preparatory work by holding that “there is no occasion to have regard to preparatory work if the text of a convention is sufficiently clear in itself”. The Case of the S.S. ‘Lotus’, Judgment, [1927] P.C.I.J. Series A, No 10 at 16. To the same effect, see Case Concerning Payment of Certain Serbian Loans Issued in France, Judgment, [1929] P.C.I.J. Series A, No 20 at 30.

56. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), supra note 2 at 220, para. 104.

57. It is noteworthy to observe that the Virginia Commentary provides that it was:

[C]onceived by its editors to meet the need—particularly essential in the absence of an official legislative history for the Convention—for an objective and comprehensive analysis of the articles in the Convention and in the Agreement relating to the Implementation of Part XI of the Convention that entered into force in 1996.

See NORDQUIST, Myron H. et al. , eds., United Nations Convention of the Law of the Sea 1982: A Commentary (Leiden: Brill, 1993), at 12Google Scholar.

58. Ibid., at vol. II, 848.

59. Reproduced in Nordquist, supra note 57 at vol. II, 849 (emphasis added).

60. Ibid., at 383.

61. North Sea Continental Shelf (Federal Republic of Germany/Netherlands), Judgment, [1969] I.C.J. Rep. 3 at 51, para. 96.

62. Informal Suggestion by Ireland, UN Doc. NG6/1 (1978).

63. The notion of crustal neutrality is also consecrated in point 7.2.9 in the S&TG, supra note 24. In its Summary of the Recommendations made to the United Kingdom, the CLCS also stated that: “The principle of crustal neutrality applies: i.e., Article 76 is neutral regarding the crustal nature of the land mass of a coastal State.” See Commission on the Limits of the Continental Shelf, supra note 35 at para. 22(iv).

64. UNCLOS, supra note 1, art. 76(6).

65. Ibid.

66. Ibid. (emphasis added).

67. Nordquist, supra note 57 at vol. II, 843.

68. It is well established that “[i]t is the duty of the Court to interpret the Treaties, not to revise them”: Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase), Advisory Opinion, [1950] I.C.J. Rep. 221 at 229; also quoted in Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment, [1952] I.C.J. Rep. 176 at 198.

69. As Sean Murphy notes:

While the Vienna Convention contemplates using the “legislative history” of the treaty—i.e., the preparatory work of the treaty or travaux préparatoires—the difficulty in doing so, especially for multilateral treaties that entailed a constellation of States and their officials engaged in years of sometimes complex negotiations, is well known.

See Sean MURPHY, “The Utility and Limits of Canons of Construction in Public International Law” in Klingler et al., supra note 47 at 28.

70. Official Records of the Third United Nations Conference on the Law of the Sea, vol. XIII, 126th meeting, 2 April 1980, UN Doc. A/CONF.62/SR.126 (1980) at 11, para. 2.

71. Official Records of the Third United Nations Conference on the Law of the Sea, vol. XIII, 125th meeting, 2 April 1980, UN Doc. A/CONF.62/SR.125 (1980) at 6, para. 3.

72. Official Records of the Third United Nations Conference on the Law of the Sea, supra note 70, para. 5 (emphasis added).

73. VOELCKEL, Michel, “Qu'est-ce Qu'une ‘Dorsale’ Au Sens de L'article 76 de la Convention de 1982 sur le Droit de La Mer? Quelques Remarques et Commentaires à Propos des Revendications sur le Plateau Continental Arctique” in RAIGON, Rafael C. and CATALDI, Giuseppe, eds., L’évolution et l’état Actuel du Droit International de la mer: Mélanges de Droit la mer Offerts à Daniel Vignes (Brussels: Bruylant, 2009), at 954Google Scholar. “Can we expect from the travaux préparatoires anything other than an explanation of the terminological chaos resulting from the negotiations, rather than the meaning of the treaty provisions” (author's translation).

74. It is fair to say that there is general disagreement among scholars as to which documents and which circumstances are relevant for the purpose of art. 32 of the Vienna Convention. Some are reluctant to rely on states’ positions unless other states have acquiesced or accepted that position; see DE VISSCHER, Charles, Problèmes D'interprétation Judiciaire en Droit International Public (Paris: Pédone, 1963) at 112–17Google Scholar. Others argue for the inclusion of all preparatory work that emerges during the relevant negotiations but that particular attention should be given to such sources that conclusively demonstrate a common intention among the participants; see Eric CANAL-FORGUES, “Remarques sur le Recours Aux Travaux Préparatoires Dans le Contentieux International” (1993) Revue générale de droit international public 905.

75. BROWNLIE, Ian, Principles of Public International Law, 5th ed. (Oxford: Oxford University Press, 1998) at 638Google Scholar.

76. International Law Commission, supra note 13 at 192, paras. 95–6.

77. In the Qatar v. Bahrain case, the ICJ stressed in this regard that “preparatory work must be used with caution in the present case, on account of their fragmentary nature”. See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Judgment, [1995] I.C.J. Rep. 6 at 21, para. 41. However, Judge Schwebel and Judge Shahabuddeen considered that the travaux préparatoires in that particular situation were sufficient for the purposes of art. 32 of the Vienna Convention.

78. Philip ALLOTT, “The Concept of International Law” (1999) 10 European Journal of International Law 43.

79. See BREKKE, Harald and SYMONDS, Phil, “The Ridge Provisions of Article 76 of the UN Convention on the Law of the Sea” in NORDQUIST, Myron H., MOORE, John Norton, and HEIDAR, Tomas, eds., Legal and Scientific Aspects of Continental Shelf Limits (Leiden: Martinus Nijhoff, 2004), at 169–99Google Scholar.

80. UNCLOS, supra note 1, art. 76(3).

81. Concise Oxford English Dictionary (11th edn revised; Oxford: Oxford University Press, 2008)Google Scholar.

82. The idea of a higher standard in order to constitute a SENCCM, as opposed to the notion of natural prolongation, has also been expressed by other authors. See Jianjun, GAO, “The Seafloor High Issue in Article 76 of the LOS Convention: Some Views from the Perspective of Legal Interpretation” (2012) 43 Ocean Development & International Law 118Google Scholar; Nuno Marques ANTUNES and Fernando PIMENTEL, “Reflecting on the Legal Technical Interface of Article 76 of the LOSC: Tentative Thoughts on Practical Implementation” (October 2003), online: International Hydrographic Organization <https://www.laohamutuk.org/OilWeb/JPDA/TSDAweb/Article76.pdf>.

83. S&TG, supra note 24 at point 7.3.1 (emphasis added).

84. Ibid.

85. Ibid.

86. Point 7.3.1(a) of the S&TG, supra note 24, states:

In the active margins, a natural process by which a continent grows is the accretion of sediments and crustal material of oceanic, island arc or continental origin onto the continental margin. Therefore, any crustal fragment or sedimentary wedge that is accreted to the continental margin should be regarded as a natural component of that continental margin.

87. Point 7.3.1(b) of the S&TG, supra note 24, states:

In the passive margins, the natural process by which a continent breaks up prior to the separation by seafloor spreading involves thinning, extension and rifting of the continental crust and extensive intrusion of magma into and extensive extrusion of magma through that crust. This process adds to the growth of the continents. Therefore, seafloor highs that are formed by this breakup process should be regarded as natural components of the continental margin where such highs constitute an integral part of the prolongation of the land mass.

88. Aegean Sea Continental Shelf case (Greece v. Turkey), Judgment, [1978] I.C.J. Rep. 3 at 36, para. 86.

89. See point 6.2.6 of the S&TG listing numerous physical continental margins for the purpose of determining the base of the continental slope pursuant to the evidence-to-the-contrary rule under art. 76(4)(b) of UNCLOS.

90. Point 2.1.11 of the S&TG, supra note 24, provides that “[s]ubmarine elevations are exempted from the provisions applied to submarine ridges. They are subject instead to the constraints provided in paragraph 5.”

91. Ibid.

92. However, in any event, to the extent a provision of the S&TG conflicts with art. 76 or Annex II of UNCLOS, it is treaty law that prevails. See in this regard, Commission on the Limits of the Continental Shelf, “Letter dated 25 August 2005 from the Legal Counsel, Under-Secretary-General of the United Nations for Legal Affairs, addressed to the Chairman of the Commission on the Limits of the Continental Shelf”, UN Doc. CLCS/46 (2005).

93. UNCLOS, supra note 1, art. 2 of Annex II.

94. Whereas art. 76(8) limits itself to provide that outer limits that are based on the recommendations of the CLCS are final and binding, ITLOS observed in this regard that it would necessarily follow that only such outer limits that are based on the recommendations of the CLCS are final and binding and thus opposable to the international community; see Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), supra note 44 at para. 408. However, it has been observed elsewhere that:

A continental shelf boundary that has not been established on the basis of the recommendations of the Commission may still become final and binding in the sense of Article 76(8), depending on the further actions of the coastal State and other States.

See International Law Association Committee, “International Law Association Berlin Conference (2004)—Legal Issues of the Established to Study the Outer Continental Shelf” (2004) at 23, ftn. 111.

95. The S&TG provide that:

These Scientific and Technical Guidelines form the basis for the Commission to make its recommendations with respect to submissions prepared by States according to Article 76 and Annex II to the Convention in a manner that is consistent with the Convention and international law.

See S&TG, supra note 24 at point 1.1.

96. Commission on the Limits of the Continental Shelf, “Provisional Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf”, 4 September 1998, UN Doc. CLCS/L.6 (1998).

97. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, [1984] I.C.J. Rep. 246 at 305, para. 130 (emphasis added).

98. Ibid.

99. However, in a legal opinion to the Chairman of the CLCS, the Under-Secretary-General of the UN for Legal Affairs noted that, notwithstanding the International Seabed Authority, which is vested with explicit powers to adopt its own rules procedure, the same considerations as those that the ICJ relied on in its Advisory Opinion in Reparations for Injuries Suffered in the Service of the United Nations, [1949] I.C.J. Rep. 274, “can be applied to the [CLCS]”. See Commission on the Limits of the Continental Shelf, supra note 92 at 7.

100. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, [2008] I.C.J. Rep. 12 at 50–1, para. 121.

101. In the legal opinion to the Chairman of the CLCS, the Under-Secretary-General of the UN for Legal Affairs stated that the CLCS must be considered vested with implicit powers to adopt, inter alia, the S&TG, insofar as such powers “are essential to the performance of its duties”. See Commission on the Limits of the Continental Shelf, supra note 92 at 7.

102. Decision Regarding the Date of Commencement of the Ten-Year Period for Making Submissions to the Commission on the Limits of the Continental Shelf set out in Article 4 of Annex II to the United Nations Convention on the Law of the Sea, SPLOS/72 (2001). It has been observed that, by the adoption of SPLOS/72, “the States parties thus recognized the role played by the Guidelines and highlighted the particular importance they attached to them in the context of implementation of Article 76, paragraph 8, of [UNCLOS]”. Ibid.

103. A corollary challenge in this regard relates to the inability of the CLCS to fulfil its mandate in clinical isolation to legal considerations. Rüdiger Wolfrum observes in this regard that “a competence not referred to in the [UNCLOS] which, nevertheless, is being fulfilled by the [CLCS] is the interpretation, or at least giving guidance, to the interpretation of Article 76 of the [UNCLOS]”. WOLFRUM, Rüdiger, “The Role of International Dispute Settlement Institutions in the Delimitation of the Outer Continental Shelf” in LAGONI, Rainer and VIGNES, Daniel, eds., Maritime Delimitation (Leiden: Martinus Nijhoff, 2006), at 24Google Scholar. L.D.M. Nelson has also observed that “one of the cardinal functions of the [CLCS] must necessarily be to interpret or apply the relevant provisions of the [UNCLOS]—an essentially legal task”. NELSON, L.D.M., “The Continental Shelf: Interplay of Law and Science” in ANDO, Nisuke, MCWHINNEY, Edward, and WOLFRUM, Rüdiger, eds., Liber Amicorum Judge Shigeru Oda (Leiden: Martinus Nijhoff Publishers, 2002), at 1238Google Scholar.

104. S&TG, supra note 24 at point 1.1.

105. Ibid., at point 1.3.

106. The terms of reference of the Commission are enumerated in UNCLOS, supra note 1, art. 3(1) of Annex II.

107. See JARMACHE, Elie, “À Propos de la Commission” (2006) 11 Annuaire du Droit de la mer 67Google Scholar.

108. Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), supra note 44 at para. 408. A similar view was also expressed by Tullio Treves in a paper that was published in 1989: “[I]l est difficile d'imaginer comment les critères des paragraphes de l'article 76 qui suivent le premier pourraient être appliqués de manière opposable aux autres Etats … sans la sanction d'un organisme technique international indépendant, tel que la Commission des limites du plateau continental.” TREVES, Tullio, “La Limite Extérieure du Plateau Continental: Évolution Récente de la Pratique” (1989) 35 Annuaire Français de Droit International 734CrossRefGoogle Scholar. “It is difficult to imagine how the paragraphs subsequent to the first paragraph could be applied in a manner opposable to third states with an enforcement mechanism of an independent international technical committee such as the CLCS” (author's translation).

109. Art. 31(3)(b) of the Vienna Convention, supra note 11, provides: “There shall be taken into account, together with the context … Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.” Nevertheless, Anthony Aust notes that “[g]enerally accepted, however, does not mean that all states parties have to have engaged in a practice, only that all have accepted it, albeit tacitly”. See AUST, Anthony, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2007) at 191CrossRefGoogle Scholar.

110. Georg Nolte has observed that the ICJ and arbitral tribunals “do not limit its use of subsequent practice to serving as a means of interpretation, but also as a way of recognizing modifications of treaty obligations over time”. NOLTE, Georg, “Subsequent Practice as a Means of Interpretation in the Jurisprudence of the WTO Appellate Body” in CANNIZZARO, Enzo, ed., The Law of Treaties Beyond the Vienna Convention (Oxford: Oxford University Press, 2011), at 141–2Google Scholar.

111. Commission on the Limits of the Continental Shelf, supra note 7 at para. 217.

112. Ibid., at para. 219.

113. Ibid., at para. 218.

114. Ibid., at para. 220.

115. Ibid., at para. 221.

116. Ibid., at para. 220.

117. Ibid., at para. 219.

118. Another understanding could be that the CLCS accordingly sought to avoid a pre-emption which would have foreclosed the submitting coastal state from the opportunity of providing supplementary data. However, it is noted that the CLCS did not limit its assessment to morphological data which was provided by the submitting coastal state but also on the basis of geophysical and geological evidence, which, according to the CLCS, “indicates a magmatic origin of th[e] crust” underlying the Joey Rise. Ibid., at para. 220.

119. Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Norway in Respect of the Areas in the Arctic Ocean, the Barents Sea and the Norweigian Sea on 27 November 2006 (adopted on 27 March 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/nor06/nor_rec_summ.pdf> at para. 76.

120. Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Japan on 12 November 2008 (adopted on 19 April 2012), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/jpn08/com_sumrec_jpn_fin.pdf> at para. 116.

121. Ibid., at para. 119.

122. Ibid., at para. 120(v) (emphasis added).

123. Ibid.

124. This arises if comparison is made between Figure 11 in Commission on the Limits of the Continental Shelf, supra note 119 at 47, and Figure I.1 in Commission on the Limits of the Continental Shelf, supra note 7 at 59.

125. Commission on the Limits of the Continental Shelf, supra note 7 at para. 220.

126. Commission on the Limits of the Continental Shelf, supra note 120, para. 120(v).

127. Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Partial Submission Made by the Republic of France in Respect of the Areas of the French Antilles and the Kerguelen Islands on 5 February 2009 (adopted on 19 April 2012), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/fra09/SUMREC_FRA1_19_04_2012.pdf> at 12, para. 82.

128. Ibid.

129. Ibid., at 13, para. 87.

130. Ibid., at 13, para. 86.

131. Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Iceland in the Ægir Basin Area and in the Western and Southern Parts of Reykjanes Ridge Made on 29 April 2009 (adopted on 10 March 2016), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/isl27_09/2016_03_10_sc_isl.pdf> at para. 73.

132. Ibid., at para. 76.

133. Art. 37(1) of the Rules of Procedure of the Commission on the Limits of the Continental Shelf provides:

Subject to rule 35, decisions of the Commission, subcommission or subsidiary body on all matters of substance shall be taken by a two-thirds majority of the members present and voting. For the Commission, this shall include the establishment of subcommissions, the approval of the recommendations prepared by a subcommission, requests for advice by specialists, cooperation with competent international organizations, as well as the amendment of the existing and the adoption of new Rules and other regulations, guidelines and annexes to these Rules.

Commission on the Limits of the Continental Shelf, Rules of Procedure of the Commission on the Limits of the Continental Shelf, 17 April 2008, UN Doc. CLCS/40/Rev.1 (2008).

134. Commission on the Limits of the Continental Shelf, supra note 131 at para. 78.

135. Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by France in Respect of French Guiana and New Caledonia Regions on 22 May 2007 (adopted on 2 September 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/fra07/COM_REC_FRA_02_09_2009_summary.pdf> at 19, para. 68.

136. Ibid.

137. Commission on the Limits of the Continental Shelf, supra note 7 at 65, para. 222.

138. Commission on the Limits of the Continental Shelf, supra note 119 at 29, para. 77. The CLCS undertook a similar approach regarding the classification of the Vøring Plateau as a SENCCM of the Mainland Norway. See Commission on the Limits of the Continental Shelf, supra note 119 at 28, para. 77.

139. Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Argentina on 21 April 2009 (adopted on 11 March 2016) at 15, para. 83, online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/arg25_09/2016_03_11_COM_SUMREC _ARG.pdf>.

140. Ibid., at 15, para. 87.

141. It should be noted that the CLCS undertook an in-depth assessment of the geological characteristics of the Rio de la Plata Craton passive volcanic continental margin region as a result of its assessment of the validity of the foot of the continental slope points that Argentina had determined pursuant to the evidence to the contrary rule under art. 76(4)(b) of UNCLOS. It may be assumed that from this exercise that the seafloor high landward of the foot of the continental slope points is of continental origin.

142. Commission on the Limits of the Continental Shelf, supra note 7 at 22, para. 82.

143. Ibid., at 22, para. 83.

144. Ibid., at 23, para. 83.

145. Commission on the Limits of the Continental Shelf, supra note 7 at para. 82.

146. S&TG, supra note 24 at point 7.3.1(a).

147. Commission on the Limits of the Continental Shelf, supra note 119 at 19, para. 120(ii).

148. Ibid., at 19, para. 120(iv) (emphasis added).

149. Commission on the Limits of the Continental Shelf, supra note 131 at para. 73.

150. Ibid.

151. However, the application of the Gardiner formula under art. 76(4)(a)(i) of UNCLOS does require geological data in order to calculate on the one hand the depth of sediments, which constitute the outer edge of the continental margin, and also to document continuity of sediments from the relevant outermost fixed point to the foot of the continental slope, as required pursuant to point 8.5.3(b) of the S&TG.

152. UNCLOS, supra note 1, art. 3(1)(a) of Annex II.

153. UNCLOS, supra note 1, art. 8 of Annex II provides: “In 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.”

154. In its Note Verbale to the Secretary-General of the United Nations dated 11 January 2011, the United Kingdom stated in relation to the CLCS's recommendations on Ascension Island that it:

[W]ill await with interest the outcomes of future submissions which raise similar issues of legal interpretation of the Convention, and in particular those submissions which relate to the entitlement of coastal states to continental shelf areas beyond 200 [M] on the basis of mid-ocean ridges.

155. The recommendations of the CLCS to Japan are of particular interest in this regard, more specifically its reasoning for refusing to accept that the Minami-Tori Shima Seamount Group was a submerged prolongation of Japan. In its deliberations, the CLCS stressed that its approach was “consistent with the views presented in previous Recommendations”. Summary of the Recommendations of CLCS to Japan, supra note 120 at para. 135.

156. The PCIJ observed that to interpret is to “define the meaning which should be given to the terms”. See Interpretation of Judgments Nos 7 and 8 (The Chorzów Factory), Judgment, [1927] P.C.I.J. Series A, No. 13 at 10.