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OUTER CONTINENTAL SHELF BOUNDARY AGREEMENTS

Published online by Cambridge University Press:  09 April 2013

Bjarni Már Magnússon
Bjarni Már Magnússon*
Affiliation:
Specialist in International Law at Reykjavik University School of Law, [email protected].
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Abstract

The article analyses the trends in continental shelf boundary agreements that extend beyond 200 nautical miles. The focus is on three issues: first, the delimitation method; second, whether States have acted on the basis that they have to delineate the limits between the continental shelf beyond 200 nautical miles and the international seabed area before they engage in a boundary delimitation with neighbouring states; and third, how the end point of the boundary line has been defined. The goal of the analysis is to find out whether any rule of customary law has emerged which seems not to be the case.

Keywords

Commission on the Limits of the Continental ShelfContinental ShelfInternational Tribunal for the Law of the Sealaw of the seanegotiationsState practice
Type
Articles
Information
International & Comparative Law Quarterly , Volume 62 , Issue 2 , April 2013 , pp. 345 - 372
Copyright
Copyright © British Institute of International and Comparative Law 2013

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References

1 Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v Myanmar) (Judgment) 2012. <http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/1-C16_Judgment_14_02_2012.pdf> accessed 27 December 2012. This author was a junior counsel for Bangladesh in the case. Views expressed are those of the author alone.

2 For reasons of simplification, the continental shelf beyond 200 nm is often referred to as the outer continental shelf while the continental shelf within 200 nm is sometimes referred to as the inner continental shelf. These terms are nowhere to be found in UNCLOS and are not strictly correct since ‘there is in law only a single “continental shelf” rather than an inner continental shelf and a separate extended or outer continental shelf.’ In the Matter of an Arbitration between Barbados and the Republic of Trinidad and Tobago (Barbados v Republic of Trinidad and Tobago) (Arbitration Tribunal) (2006) 45 ILM 800, 835, para 213 (Barbados/Trinidad and Tobago Case); Bay of Bengal Case (n 1) 108, para 362.

3 Bay of Bengal Case (n 1) 112, para 380 and 115, para 393. In the newest maritime boundary judgment the International Court of Justice (ICJ) decided that it was ‘not in a position to delimit the continental shelf boundary [beyond 200 nm] between Nicaragua and Colombia’ because Nicaragua did not establish that it was entitled to the continental shelf beyond the 200 nm limit. Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) 2012 <http://www.icj-cij.org/docket/files/124/17164.pdf> accessed 27 December 2012 [46, para 129] (Nicaragua/Colombia Case). This does not mean that the decision is irrelevant for the outer continental shelf. It, for instance, contributes to the procedural aspects of hearings involving outer continental shelf considerations. See ibid 39–46, paras 104–31.

4 The international seabed area is usually referred to as the Area. Art 1(1) of UNCLOS defines the Area as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’. The definition is a negative one ‘for in order to know the exact extent of the Area, one needs to know up to where exactly coastal states have extended their national jurisdiction at sea.’ Franckx, E, ‘The International Seabed Authority and the Common Heritage of Mankind: The Need for States to Establish the Outer Limits of their Continental Shelf’ (2010) 25 IJMCL 543, 552Google Scholar. Art 140 of UNCLOS provides that ‘[a]ctivities in the Area shall … be carried out for the benefit of mankind as a whole’.

5 Adopted 10 December 1982, entered into force 16 November 1994, 1833 UNTS 396.

6 Art 76(1) of UNCLOS. The ICJ has recently stated that the provision ‘forms part of customary international law’. Nicaragua/Colombia Case (n 3) 43, para 118.

7 Art 76(3) of UNCLOS.

8 The provision reads:

For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either:

  1. (i)

    (i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or

  2. (ii)

    (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope.

9 The provision reads:

The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.

A special rule applies to submarine ridges. See art 76(6) of UNCLOS.

10 Committee on ‘Legal Issues of the Outer Limits of the Continental Shelf’ (Preliminary Report) in International Law Association Report of the Seventy Conference, (New Delhi 2002) (International Law Association 2002) 741, 742 (2002 ILA Report).

11 Art 76(8) of UNCLOS.

12 ibid.

13 ibid. The role of the Commission is elaborated in Annex II of UNCLOS. A list of submissions, recommendations, preliminary information documents, executive summaries of submissions, diplomatic notes responding to submissions and other relevant material related to the work of CLCS is found on the Commission's website <http://www.un.org/depts/los/clcs_new/clcs_home.htm> accessed 27 December 2012.

14 Art 83(1) of UNCLOS.

15 Part XV of UNCLOS is titled ‘Settlement of Disputes’.

16 Adopted 26 June 1945, entered into force 24 October 1945, 1 UNTS xvi.

17 Art 83 of UNCLOS.

18 Bay of Bengal Case (n 1) 76, para 240; See also Nicaragua/Colombia Case (n 3) 71–2, paras 190–194; Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep. 61, 103, para 122 (Black Sea Case). Before the Black Sea Case the equidistance/relevant circumstances method was viewed as a two-step approach. See Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) (Judgment) [1985] ICJ Rep. 13, 46, para 60 (Libya/Malta Case); Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v Norway) [1993] ICJ Rep. 38, 61, para 51 (Jan Mayen Case); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Merits) [2001] ICJ Rep 40, 111, para 230 (Qatar/Bahrain Case); Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep. 303, 441, para 288 (Cameroon/Nigeria Case); Barbados /Trinidad and Tobago Case (n 2) 839, para 242.

19 Weil, P, The Law of Maritime Delimitation – Reflections (Maureen MacGlashan trans, Cambridge Grotius Publications 1989) 282Google Scholar.

20 ibid.

21 Barbados/Trinidad and Tobago Case (n 2) 838, para 233.

22 Highet, K, ‘The Use of Geophysical Factors in the Delimitation of Maritime Boundaries’ in Charney, J and Alexander, L (eds) International Maritime Boundaries vol I (Martinus Nijhoff 1993) 163, 196 (IMB 1)Google Scholar; Colson, D, ‘The Delimitation of the Outer Continental Shelf between Neighboring States’ (2003) 96 AJIL 91, 107CrossRefGoogle Scholar; Anderson, D, ‘Developments in Maritime Boundary Law and Practice’ in Colson, D and Smith, R (eds), International Maritime Boundaries vol V (Martinus Nijhoff 2005) 3197Google Scholar, 3214 (IMB 5).

23 2002 ILA Report (n 10) 751.

24 ibid 751–2.

25 ibid 752.

26 Colson, D, ‘Delimitation of the Outer Continental Shelf between States with Opposite or Adjacent Coasts’ in Nordquist, M, Moore, J and Heidar, T (eds) Legal and Scientific Aspects of Continental Shelf Limits (Martinus Nijhoff 2004) 287, 290CrossRefGoogle Scholar; Libya/Malta Case (n 18) 35, para 39.

27 See eg Weil (n 19) 154 and 206.

28 See eg NSM Antunes, ‘Some Thoughts on the Technical Input in Maritime Delimitation’ in IMB 5 (n 22) 3377, 3380. It has been noted that ‘in practice negotiation is employed more frequently than all the other [dispute settlement] methods put together.’ J Merrills, International Dispute Settlement (5th edn, Cambridge University Press 2011) 2.

29 Klein, N, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press 2005) 255CrossRefGoogle Scholar; See also B Kwiatkowska, ‘Economic and Environmental Considerations in Maritime Boundary Delimitations’ in IMB 1 (n 22) 75 ff; B Kwiatkowska, ‘Resource, Navigational and Environmental Factors in Equitable Maritime Boundary Delimitations’ in IMB 5 (n 22) 3223 ff. Merrills notes that ‘[n]egotiation is a process which allows the parties to retain the maximum amount of control over their dispute; adjudication in contrast, takes the dispute entirely out of their hands’. Merrills (n 28) 16.

30 Adopted 4 June 1975; entered into force 27 August 1976; Limits in the Seas No. 85 (1979) (1975 Gambia–Senegal Agreement).

31 A Adele, ‘The Gambia–Senegal’ Report Number 4-2 in IMB 1 (n 22) 849, 849.

32 Gambia is locked into Senegal, ie landward it is surrounded by Senegal, as Monaco is surrounded by France.

33 Adele (n 31) 851.

34 ibid 850.

35 Preliminary Information Indicative of the Outer Limits of the Continental Shelf and Description of the status of preparation for making a submission to the Commission on the Limits of the Continental Shelf for the Republic of Gambia (4 May 2009) 7 (Gambia Preliminary); Document d'Informations Preliminaires Indicatives sur les Limites Exterieures du Plateau Continental & Description de l'etat d'Avanacement du Dossier et Prevision de Date a Laquelle sera soumis le dossier National a la Commission des Limites du Plateau Continental des Nations Unies (12 May 2009) 9.

36 It must be noted that ‘there may be a potential overlap between areas of the continental shelf beyond 200 nautical miles that may be claimed by the Republic of The Gambia, The Republic of Cape Verde and the Republic of Senegal.’ See Gambia Preliminary (n 35) 8.

37 Adopted 18 December 1978; entered into force 15 February 1985; 18 ILM 291 (1978 Australia–Papua New Guinea Agreement).

38 C Park, ‘Australia–Papua New Guinea’ Report Number 5-3 in IMB 1 (n 22) 929, 929.

39 ibid 933.

40 H Burmester, ‘The Torres Strait Treaty: Ocean Boundary Delimitation by Agreement’ (1982) 76 AJIL 321, 333.

41 Adopted 4 January 1982; entered into force 9 January 1983; 1329 UNTS 107 (1982 Australia–France Agreement).

42 See V Prescott, ‘Australia (Heard/McDonald Islands)–France (Kerguelen Islands)’ Report Number 6-1 in Charney and Alexander (n 22) vol II, 1185, 1185 (IMB 2).

43 ibid.

44 ibid 1188.

45 ibid 1186.

46 C Park, ‘Australia–France (New Caledonia)’ Report Number 5-1 in IMB 1 (n 22) 905, 908. The CLCS has accepted France's submission to the area beyond 200 nm towards the agreed boundary line. Summary of 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 (2 September 2009) 21, para 71.

47 See art 3(2) of the 1982 Australia–France Agreement (n 41).

48 Continental Shelf Submission of Australia; Executive Summary (15 November 2004) 17 and 35.

49 Adopted 7 November, 1988; entered into force 11 January 1990; 13 LOSB 48 (1988 Ireland–UK Agreement). The agreement has not been accepted by Denmark and Iceland. The two countries have made claims to the continental shelf that overlap the area delimited by the 1988 Ireland-UK Agreement. See eg Submission to the Commission on the Limits of the Continental Shelf pursuant to art 76, para 8, of the United Nations Convention on the Law of the Sea 1982 in respect of the Hatton-Rockall Area; Executive Summary (31 March 2009) 4.

50 It must be noted that Rockall and Helen's Reef played no role in determining the course of the line. See David Anderson, ‘Ireland–United Kingdom’ Report Number 9-5 in IMB 2 (n 42) 1767, 1770.

51 See 1988 Ireland–UK Agreement (n 49).

52 Anderson, ‘Ireland–United Kingdom’ (n 50) 1767.

53 ibid.

54 ibid 1770. The bisector method is made of two steps. First, the Parties’ coasts facing the delimitation area are transformed into straight lines illustrating their general direction. Second, the angle created by these lines is bisected to yield the direction of the delimitation line. It must be emphasized that the drawing of an angle bisector line, as the drawing of an equidistance line, is not necessarily the end of the process. If the angle bisector method does not lead to an equitable solution it is subject to any modification needed. See Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America) (Judgment) [1984] ICJ Rep. 246, 334–5, paras 218 and 336–7, para 222.

55 Anderson, ‘Ireland–United Kingdom’ (n 50) 1770.

56 Colson (n 22) 95.

57 Adopted 13 September 1988; not in force; 12 LOSB 19 (1988 Australia–Solomon Islands Agreement).

58 C Park, ‘Australia–Solomon Islands’ Report Number 5-4 in IMB 1 (n 22) 977, 977.

59 ibid.

60 The agreement created a grey area problem. See ibid 977–8. Grey areas are discussed in the Bay of Bengal Case (n 1) 134–7, paras 463–476.

61 Park (n 58) 979.

62 Adopted 18 April, 1990; entered into force 23 July 1991, 1654 UNTS 300 (1990 Trinidad and Tobago–Venezuela Agreement). It must be noted that Venezuela is not a party to UNCLOS.

63 The two treaties are the Treaty between His Majesty in Respect of the United Kingdom and the President of the United States of Venezuela Relating to the Submarine Areas of the Gulf Paria (adopted 26 February 1942; entered into force 22 September 1942) 205 LNTS 121 (1942 UK–Venezuela Treaty) and the Agreement between the Government of Trinidad and Tobago and the Government of the Republic of Venezuela on the Delimitation of Marine and Submarine Areas (First Phase) (Adopted 4 August 1989; subsumed by the entry into force of the 1990 Agreement).

64 K Nweihed, ‘Trinidad and Tobago–Venezuela’ Report Number 2-13(3) in IMB 1 (n 22) 675, 675.

65 Colson (n 22) 95.

66 ibid.

67 Nweihed (n 64) 678.

68 ibid 681.

69 ibid.

70 ibid 677. See art 2(2) of the 1990 Trinidad and Tobago–Venezuela Agreement (n 62).

71 Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, para 8, of the United Nations Convention on the Law of the Sea – Republic of Trinidad and Tobago; Executive Summary (12 May 2009) 13 (Trinidad and Tobago CLCS Executive Summary).

72 ibid.

73 Barbados/Trinidad and Tobago Case (n 2) 856, para 368.

74 See Trinidad and Tobago CLCS Executive Summary (n 71) 14–15.

75 Adopted 1 June 1990; entered provisionally into force 15 June 1990; not in force; 29 ILM 941 (1990 USA–USSR Agreement). It must be noted that US is not a party to UNCLOS.

76 Colson (n 22) 96.

77 E Verille, ‘United States–Soviet Union’ Report Number 1-6 in IMB 1 (n 22) 447, 450.

78 ibid 449.

79 ibid 448.

80 ibid 447–8.

81 Colson (n 22) 96.

82 Note Verbale of the Permanent Mission of the United States of America to the United Nations (28 February 2002) Doc. CLCS.01.2001.LOS/USA 1.

83 Adopted 14 March 1997; not in force, 36 ILM 1053 (1997 Australia–Indonesia Agreement). Neither of the parties has ratified the treaty. The States have though been acting as the 1997 treaty were in force. See Serdy, A, ‘Is there a 400-mile rule in UNCLOS Article 76(8)?’ (2008) 57 ICLQ 941, 951CrossRefGoogle Scholar.

84 V Prescott, ‘Australia–Indonesia’ Report Number 6-2(6) in IMB 4 (n 22) 2697, 2701.

85 ibid.

86 ibid 2698.

87 ibid 2708.

88 ibid 2708–9.

89 Serdy, A, ‘Is there a 400-mile rule in UNCLOS Article 76(8)?’ (2008) 57 ICLQ 941CrossRefGoogle Scholar, 943 fn 10.

90 Adopted June 9, 2000; entered into force 17 January 2001; 2143 UNTS 417 (2000 USA–Mexico Agreement).

91 Treaty about Maritime Boundaries between the United States of America and the United Mexican States (adopted 4 May 1978; entered into force 13 November 1997) 17 ILM 1073.

92 R Smith, ‘Mexico–United States’ Report Number 1-5(2) in IMB 4 (n 84) 2621, 2621.

93 ibid 2623.

94 ibid 2622.

95 ibid.

96 ibid 2623.

97 See a Partial Submission of Data and Information on the Outer Limits of the Continental Shelf of the United Mexican States pursuant to Part VI of and Annex II to the United Nations Convention on the Law of the Sea; Executive Summary (13 December 2007) 3, 4, 5, 10 and 11.

98 Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission made by Mexico in Respect of the Western Polygon in the Gulf of Mexico on 13 December 2007 (31 March 2009) 9, para 33 and 15, para 50; See also C Lathrop, ‘Continental Shelf Delimitation beyond 200 Nautical Miles: Approaches Taken by Coastal States before the Commission on the Limits of the Continental Shelf’ in Colson and Smith IMB 6 (n 22), 4139, 4150.

99 Adopted 25 July 2004; not in force; 55 LOSB 40 (2004 Australia–New Zealand Agreement).

100 N Fyfe and G French, ‘Australia–New Zealand’ Report Number 5-26 in IMB 5 (n 22) 3759, 3759.

101 ibid 3760. The CLCS has adopted its recommendations regarding these areas. See Summary of the Recommendations of the Commission on the Limits of the Continental Shelf (CLCS) in Regard to the Submission made by New Zealand 19 April 2006 (22 August 2008) 44, para 148 & 54, para 177.

102 Fyfe and French (n 100) 3764.

103 ibid 3761.

104 ibid 3763.

105 ibid 3764.

106 ibid.

107 ibid 3763.

108 ibid.

109 The Norwegian Ministry for Foreign Affairs, ‘Agreed Minutes on the Delimitation of the Continental Shelf beyond 200 Nautical Miles between the Faroe Islands, Iceland and Norway in the Southern Part of the Banana Hole of the Northeast Atlantic’ (adopted 20 September 2006). <http://www.regjeringen.no/nn/dep/ud/dok/lover_regler/retningslinjer/2006/Agreed-Minutes.html?id=446839> accessed 27 December 2012 (the 2006 Faroe Islands, Iceland, Norway Agreed Minutes or Agreed Minutes).

110 D Colson, ‘Introduction’ in IMB 6 (n 22) xxxi, xxxii.

111 R Fife, ‘Denmark/The Faroes–Iceland-Norway’ Report Number 9-26 in IMB 6 (n 22) 4532, 4544.

112 ibid 4543.

113 ibid 4537.

114 See Agreed Minutes (n 109) para 8. Iceland gets 29.000 km² and the Faroe Islands 27.000 km².

115 Fife (n 111) 4540.

116 ibid 4543.

117 ibid.

118 ibid.

119 Agreed Minutes (n 109) para 1.

120 ibid.

121 ibid para 4.

122 ibid para 9. Para 10 states: ‘The Ministers have agreed that the final delimitations will be effected by the simultaneous entry into force of the three bilateral agreements, following notification that internal requirements have been fulfilled to this end.’

123 Exchange of Notes between the United Republic of Tanzania and Kenya Concerning the Delimitation of the Territorial Waters Boundary between the Two States (adopted 9 July 1976; entered into force immediately upon signature) National Legislative Series, UN Doc. No. ST/LEG/SER.B/19, 406 (1976 Kenya–Tanzania Agreement).

124 A Adele, ‘Kenya–Tanzania’ Report Number 4-5 in IMB 1 (n 22) 875, 876.

125 ibid 877–9.

126 ibid 876.

127 See para 2(d) of the 1976 Kenya–Tanzania Agreement (n 123).

128 Adopted 23 June 2009; not in force; 70 LOSB 54 (2009 Kenya–Tanzania Agreement).

129 ibid art 1.2.

130 Adopted 15 October 2009; not in force; ORF no. 0016 20 January 2010, 1176 text no 6 in the French Official Gazette (2009 Barbados–France Agreement).

131 ibid art 3.1.

132 C Dundas, ‘Barbados–France (Guadeloupe and Martinique)’ Report Number 2-30 in IMB 6 (n 22) 4223, 4225.

133 ibid.

134 ibid.

135 Adopted 15 September 2010; not in force; 50 ILM 1113.

136 Henriksen, T and Ulfstein, G, ‘Maritime Delimitation in the Arctic; The Barents Sea Treaty’ (2011) 42 ODIL 1CrossRefGoogle Scholar, 1.

137 Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission made by Norway in Respect of Areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea on 27 November 2006 (27 March 2009) 15–16, para 40.

138 Oceans and the Law of the Sea: Report of the Secretary-General, A/57/57/Add.1 (8 October 2002) 9, para 39.

139 Joint Statement on Maritime Delimitation and Cooperation in the Barents Sea and Arctic Ocean <http://www.regjeringen.no/upload/UD/Vedlegg/Folkerett/030427_english_4.pdf> accessed 27 December 2012.

140 ibid 2.

141 ibid.

142 ibid.

143 Adopted 19 November 1973; entered into force 12 February 1974; 13 ILM 251 (1973 Uruguay–Argentina Agreement).

144 E Aréchaga, ‘Argentina–Uruguay’ Report Number 3-2 in IMB 1 (n 22) 757, 757.

145 ibid 757–8.

146 Submission of Republica Oriental el Uruguay to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph 8, of the United Nations Convention on the Law of the Sea; Executive Summary (7 April 2009) 5 (Uruguay submission).

147 ibid 11.

148 Outer Limit of the Continental Shelf – Argentine Submission; Executive Summary (21 April 2009) 6.

149 ibid. Para 4(a) of Annex I to the Rules of Procedure reads: ‘Joint or separate submissions to the Commission requesting the Commission to make recommendations with respect to delineation may be made by two or more coastal States by agreement: (a) Without regard to the delimitation of boundaries between those States.’ The current edition of the Rules of Procedure of the Commission on the Limits of the Continental Shelf (the Rules of Procedure), was adopted by the CLCS, Doc. CLCS/40/Rev.1. (11 April 2008).

150 Black Sea Case (n 18) 87, para 69.

151 D Anderson, ‘Recent Decisions of Courts and Tribunals in Maritime Boundary Cases’ in IMB 6 (n 22) 4119, 4125–6.

152 Black Sea Case (n 18) 70, para 17.

153 Barbados/Trinidad and Tobago Case (n 2) 835, para 213; Bay of Bengal Case (n 1) 108, para 362.

154 See arts 1 and 6 of the Geneva Convention on the Continental Shelf (adopted on 29 April 1958; entered into force 10 June 1964) 499 UNTS 311; See also Colson (n 22) 102.

155 Continental Shelf and UNCLOS Article 76 – Submission of Brazil; Executive Summary (17 May 2004) 5.

156 See art 1 of Maritime Delimitation Treaty between the Federative Republic of Brazil and the French Republic (French Guyana) (adopted 30 January 1981; entered into force 19 October 1983) 25 ILM 367.

157 Agreement between the Government of Brazil and the Government of Uruguay on the Definitive Demarcation of the Sea Outlet of the Arroyo Chui and the Lateral Maritime Border (adopted 21 July 1972; entered into force 12 June 1975) 1120 UNTS 133.

158 E Aréchaga, ‘Brazil–Uruguay’ Report Number 3-4 in IMB 1 (n 22) 785, 785.

159 Infante, M, ‘The Outer Continental Shelf and South American Coastal States’ in Vidas, D (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Martinus Nijhoff 2010) 577CrossRefGoogle Scholar, 581.

160 Uruguay submission (n 146) 5.

161 Neither did Uruguay.

162 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) (Judgment) [2007] ICJ Rep. 659, 735, para 253.

163 So has ITLOS. See Bay of Bengal Case (n 1) 111, para 376.

164 See art 31(3)(b) of the Vienna Convention on the Law of Treaties (adopted 23 May 1969; entered into force 27 January 1980) 1155 UNTS 311.

165 Bay of Bengal Case (n 1) 115, para 393.

166 This author addresses the question in issue 2 of this year's IJMCL.

167 The question of the rights of non-parties to UNCLOS to the outer continental shelf is left unanswered.

168 2009 Kenya–Tanzania Agreement (n 128) art 2.

169 2009 Barbados–France Agreement (n 130) art 3.1.

170 Trinidad and Tobago CLCS Executive Summary (n 73) 13.

171 Art 38(1)(b) of the ICJ Statute. The ICJ for instance looked thoroughly into state practice in North Sea Continental Shelf Cases (Federal Republic of Germany v Netherlands & Denmark) (Judgment) [1969] ICJ Rep 3, 43–47, paras 75–85 (North Sea Case).

172 ibid 44, para 77; See also Libya/Malta Case (n 18) 29–30, para 27; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 253, para 64.

173 Asylum Case (Columbia v Peru) (Judgment) [1950] ICJ Rep. 266, 277; see also Case Concerning the Right of Passage over Indian Territory (Portugal v India) (Judgment) [1960] ICJ Rep. 6, 40.

174 North Sea Case (n 171) 43, para 74; See also S.S. Wimbledon (UK, France, Italy & Japan v Poland: Germany intervening) (Judgment) [1923] PCIJ Rep Series A No 1, 15, 25; Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Rep. 116, 131; Case Concerning Rights of National of the United States of America (France v USA) (Judgment) [1952] ICJ Rep. 176, 200.

175 Bay of Bengal Case (n 1) 111, para 376.