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Outer limits of the continental shelf beyond CLCS recommendations and Article 76(8) of UNCLOS: With reference to Japan’s Cabinet Order No. 302

Published online by Cambridge University Press:  16 November 2021

Michael Sheng-ti Gau  and
Si-han Zhao
Michael Sheng-ti Gau
Affiliation:
Institute of International Law at Wuhan University, Luojia Hill, Wuhan, Hubei Province, China, email: [email protected]
Si-han Zhao
Affiliation:
Institute of International Law at Wuhan University, Luojia Hill, Wuhan, Hubei Province, China, email: [email protected]
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Abstract

In 2014 Japan’s Cabinet Order No. 302 declared the outer limits of its continental shelf beyond 200 nautical miles (OL) to the west and north of Oki-no-Tori Shima (Area 302). Oki-no-Tori Shima consists of two small, barren, and uninhabitable rocks in the West Pacific. The northern part of Area 302 is broader than what the 2012 recommendations of the Commission on the Limits of the Continental Shelf (CLCS) specify. A question arises whether Order No. 302 violates Article 76(8) of the United Nations Convention on the Law of the Sea (UNCLOS), which provides that the OL established by a coastal state ‘on the basis of’ the CLCS recommendations shall be final and binding. Another question is the role played by the CLCS in ‘assisting’ the coastal states to delimit their national jurisdiction so as to know where the Area (i.e., the Common Heritage of Mankind under UNCLOS Articles 1(1)(1) and 136) begins. The essential questions arising from Area 302 concern how well the UNCLOS mechanism can perform to safeguard the Common Heritage of Mankind through preventing encroachment thereupon by individual coastal states. This article looks at the context and explores the obligations implied by Article 76(8) for coastal states to ‘follow’ the recommendations in establishing the OL, with special reference to the northern part of Area 302. The article also examines legal consequences arising from a breach of these obligations.

Keywords

CLCS recommendationJapan’s Cabinet Order No. 302Oki-no-Tori Shimaouter continental shelfUNCLOS Article 76
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 35 , Issue 1 , March 2022 , pp. 85 - 103
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

•

The Authors wish to thank Dr. Yin-Xia Fang for her drawing of Figures 2 and 3 in this article. The authors are grateful for the critical comments provided by the anonymous reviewers through the re-writing process, and encouragement from Professor T. McDorman. The opinions expressed in this article are those of the authors only and not reflecting those of any government agency.

References

1 In this article, the term ‘OL’ stands for outer limits of outer continental shelf beyond 200 nautical miles, while ‘M’ represents ‘nautical miles’. North Latitude is abbreviated as ‘NL’. ‘CLCS’ or ‘Commission’ stands for Commission on the Limits of the Continental Shelf. ‘Rop’ stands for the Rules of Procedure of the CLCS. ‘Rop-Annex I’ stands for Annex I to Rop. The Rop is available at documents-dds-ny.un.org/doc/UNDOC/GEN/N08/309/23/PDF/N0830923.pdf?OpenElement. All the online materials used here were accessed on 20 October 2021. This article is funded by two Major Projects of China’s National Social Science Foundation (Grant Nos. 18AFX026 and 19VHQ008).

2 The Japan’s Cabinet Order No. 302 was passed by the Cabinet meeting on 9 September 2014 and took effect on 1 October 2014. The English text is available at www.japaneselawtranslation.go.jp/law/detail/?printID=&re=02&id=2502&lvm=02&vm=02. For the map produced by the Foreign Ministry of Japan see www.mofa.go.jp/mofaj/press/pr/wakaru/topics/vol172/index.html.

3 The English translation of Japan’s Law on the EEZ and the Continental Shelf (Law No. 74 of 1996) is available at extwprlegs1.fao.org/docs/pdf/jap13392.pdf.

4 1982 United Nations Convention on the Law of the Sea, 1983 UNTS 3 (UNCLOS). The text can be downloaded from www.un.org/Depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm.

5 Ibid., Art. 76(8) of UNCLOS.

6 J. Van Dyke, ‘Speck in the Ocean Meets Law of the Sea’, New York Times , 21 January 1988, available at www.nytimes.com/1988/01/21/opinion/l-speck-in-the-ocean-meets-law-of-the-sea-406488.html. See also the information ‘Japanese Territory’ published by Japan’s Ministry of Foreign Affairs Website, available at www.mofa.go.jp/territory/page1we_000006.html. ‘Shima’ in Japanese means ‘island’ or ‘islands’. In this article, the name Oki-no-Tori Shima is used according to Japan’s position. Under Art. 121 of UNCLOS, islands include rocks. Rocks within the meaning of Art. 121(3) are a sub-category of islands that are not entitled to an EEZ and a continental shelf. See UNCLOS, supra note 4, Art. 121. Also see note 11, infra.

7 J. McCurry, ‘Japan to Spend Millions on Tiny Islands 1,000 miles south of Tokyo’, Guardian, 3 February 2016, available at www.theguardian.com/world/2016/feb/03/japan-spend-billions-yen-tiny-okinotori-islands-1000-miles-south-of-tokyo. Also see Van Dyke, ibid., at 6.

8 See www.un.org/depts/los/clcs_new/submissions_files/submission_jpn.htm to download the objecting Note Verbales from China and Korea against Japan’s use of Oki-no-Tori Shima to claim an EEZ, and a continental shelf.

9 See CLCS, Progress of Work in the CLCS - Statement by the Chairperson, UN Doc. CLCS/74 (2012), at 5, para. 19, available at undocs.org/en/clcs/74. See also Figure 2.

10 M. S. T. Gau, ‘Recent Decisions by the Commission on the Limits of the Continental Shelf on Japan’s Submission for Outer Continental Shelf’, (2012) 11 Chinese Journal of International Law 487.

11 Professor S. Talmon wrote a thorough chapter on this article in the Proelss Commentary. See S. Talmon, ‘Part VIII Regime of Islands-Article 121’, in A. Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (2017), 858; Y. Jia and J. L. Wu, ‘The Outer Continental Shelf of Coastal States and the Common Heritage of Mankind’, (2011) 42 Ocean Development and International Law 317, at 321–2. See also note 71, infra.

12 See supra note 8. See Summary of Recommendations of the CLCS in Regard to the Submission Made by Japan on 12 November 2008, Figure 1, ‘Bathymetric map showing outer edge formula lines in the Shikoku Basin Region’. Also see Section 3.

13 UNCLOS, supra note 4, Art. 76(8) (emphases added).

14 Ibid., Art. 3(1)(a) of Annex II.

15 See A. Oude Elferink, ‘The Continental Shelf Beyond 200 Nautical Miles: The Relationship between the CLCS and Third Party Dispute Settlement’, in A. Oude Elferink and D. R. Rothwell (eds.), Ocean Management in the 21 st Century: Institutional Frameworks and Responses (2004), 107, at 119–22; T. McDorman, ‘The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World’, (2002) 17 International Journal of Marine and Coastal Law 301, at 313–17; R. Macnab, ‘The Case for Transparency in the Delimitation of the Outer Continental Shelf in Accordance with UNCLOS Article 76’, (2004) 35 Ocean Development and International Law 1, at 11. Compare with E. Egede, ‘Submission of Brazil and Article 76 of the Law of the Sea Convention (LOSC) 1982’, (2006) 21 International Journal of Marine and Coastal Law 53.

16 R. R. Churchill and A. V. Lowe, The Law of the Sea (1999), 149; D. Colson, ‘The Delimitation of the Outer Continental Shelf Between Neighboring States’, (2003) 97 American Journal of International Law 91, at 93, fn 12; Ø. Jensen, ‘The Commission on the Limits of the Continental Shelf: An Administrative, Scientific, or Judicial Institution?’, (2014) 45 Ocean Development and International Law 171, at 176; see note 51, infra, at 21–2.

17 According to the Online Cambridge Dictionary, the meanings of ‘recommendation’ are (i) a statement that someone or something would be good or suitable for a particular job or purpose or the act of making such a statement; (ii) advice about what is the best thing to have or do; (iii) the person or thing that has been suggested as the best choice, available at 詞典英語dictionary.cambridge.org/zht/詞典/英語/recommendation; see also Collins online Dictionary, www.collinsdictionary.com/dictionary/english/recommendation. See also A. Serdy, ‘Annex II Commission on the Limits of the Continental Shelf’, in A. Proelss (ed.), supra note 11, at 2101, para. 1.

18 Art. 31(1)–(2) of VCLT reads: ‘1. 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 the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes …’ 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 332. The text can be downloaded from treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf. See also R. Gardiner, Treaty Interpretation (2015), 197.

19 Also see UNCLOS, supra note 4, Art. 318.

20 Ibid., Art. 7 of Ann. II.

21 Ibid., Art. 8 of Ann. II.

22 As of 20 October 2021, Russia, Brazil, Barbados, Argentina, and Iceland have provided revised submissions. See www.un.org/depts/los/clcs_new/commission_submissions.htm. For the situation of Brazil see A. P. da Silva, ‘Dealing with Articles 76 and 82 of the United Nations Convention on the Law of the Sea: Legal and Political Challenges for Brazil’, (2014) 28 Ocean Yearbook 145, at 161; T. McDorman, ‘The Entry into Force of the 1982 LOS Convention and Article 76 Outer Continental Shelf Regime’, (1995) 10 International Journal of Marine and Coastal Law 165, at 178. Also see Serdy’s comments, supra note 17, at 2101–2, 2104, para. 10.

23 Gardiner, supra note 18, at 179–80; I. Sinclair, The Vienna Convention on the Law of Treaties (1984), 118. ‘The Commission has also been prepared to respond to correspondence from submitting States containing questions and comments arising out of recommendations it has made, although the content of these correspondence is not public.’ See Serdy, supra note 17, at 2103, para. 7; 2104, para. 10.

24 As observed by Colson, ‘when the commission has done its work, the facts relevant to the outer continental shelf will be drawn as clearly as a coastline on a nautical chart’. See Colson, supra note 16, at 102; Jensen, supra note 16, at 177.

25 H. Llewellyn, ‘The Commission on the Limits of the Continental Shelf: Joint Submission by France, Ireland, Spain, and the United Kingdom’, (2007) 56 International and Comparative Law Quarterly 677, at 679–81, 687–90; Colson, ibid., at 93, fn 11. For McDorman, this is the compromise reached during the LOSC negotiation. See T. McDorman, ‘The Continental Shelf’, in D. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea (2017), 190.

26 UNCLOS, supra note 4 Art. 76(1)-(7); Macnab, supra note 15, at 5–9; L. Parson, ‘Part VI Continental Shelf-Article 76’, in A. Proelss (ed.), supra note 11, at 589, para. 1.

27 See Sections 2.2.1 and 2.2.2.

28 See supra note 23.

29 See UNCLOS, supra note 4, Annex II entitled ‘Commission on the Limits of the Continental Shelf’.

30 Ibid., Art. 2.

31 Ibid., Art. 3(1)(a). See also Macnab, supra note 15, at 9; McDorman, supra note 22, at 178.

32 Ibid., Art. 4. See also A. Oude Elferink, supra note 15, at 111; H. Llewellyn, supra note 25, at 682–3; ILA, infra note 51, at 10.

33 Rop, supra note 1, Rules 54(1) and 54(3). See also A. Oude Elferink, “‘Openness” and Article 76 of the Law of the Sea Convention: The Process Does Not Need to Be Adjusted’, (2009) 40 Ocean Development and International Law 36, at 40. Also see Macnab, supra note 15, at 9.

34 See UNCLOS, supra note 4, Art. 77(1). Also see Macnab, ibid., at 12.

35 UNCLOS, ibid., Art. 76(4)-(6). Also see Churchill and Lowe, supra note 16, at 148–9. Egede explains two formulas under Art. 76(4)(a)(i) and Art. 76(4)(a)(ii). See Egede, supra note 15, at 44; Parson, supra note 26, at 595–8.

36 UNCLOS, ibid., Art. 76(2).

37 McDorman, supra note 15, at 309. Also see Oude Elferink, supra note 33, at 38. Compare with ILA, infra note 51, at 22.

38 E.g., UNCLOS, supra note 4, Arts. 5–6 of Ann. II. See also Rop, supra note 1, Arts. 3(2)-(3), 4(1)-(3) of Rop-Ann. II and Arts. 2(b), 3–4, 5(1)-(2), 8, 11 of Rop-Ann. III. See also Egede, supra note 15, at 50–1.

39 Oude Elferink, supra note 15, at 121.

40 See VCLT, supra note 18, Art. 26. Also see UNCLOS, supra note 4, Art. 300. See A. Chircop, ‘Managing Adjacency: Some Legal Aspects of the Relationship Between the Extended Continental Shelf and the International Seabed Area’, (2011) 42 Ocean Development and International Law 307, at 308.

41 UNCLOS, supra note 4, Art. 1(1)(1). McDorman looked at the role of the CLCS as having a safeguard or watchdog role, like ‘the canary in the mine shaft’, respecting exaggerated continental margin claims. See McDorman, supra note 15, at 308, 324; Serdy, supra note 17, at 2068, para. 3. Also see McDorman, supra note 25, at 190.

42 UNCLOS, supra note 4, Art. 187(a)-(b) reads: ‘The Seabed Disputes Chamber shall have jurisdiction under this Part and the Annexes relating thereto in disputes with respect to activities in the Area falling within the following categories: (a) disputes between States Parties concerning the interpretation or application of this Part and the Annexes relating thereto; (b) disputes between a State Party and the Authority concerning: (i) acts … of a State Party alleged to be in violation of this Part or the Annexes relating thereto …’. As said by ITLOS in the 2012 Bangladesh/Myanmar Case, it is ‘opposability with regard to other States’ that is dependent on satisfying the requirements of Art. 76, including the obligation to submit information to the CLCS. See Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh v. Myanmar), Judgment of 14 March 2012, [2012] ITLOS Rep. 4, para. 407. Also see McDorman, supra note 25, at 192. Serdy mentions Part XV procedures. See Serdy, supra note 17, at 2104, para. 10.

43 See Submission No. 31 by South Africa dated 5 May 2009. Certain draft recommendations prepared by sub-commission were not adopted by the Commission. Consequently, the recommendations approved by the Commission did not substantively address several areas covered by the submission. Later on, South Africa encountered difficulties in knowing the weakness a new or revised submission should address, because of insufficient information given concerning why certain part of the draft recommendations were not adopted by the CLCS. See CLCS, Progress of Work in the CLCS - Statements by the Chair, UN Doc. CLCS/98 (2017), at 6, available at undocs.org/CLCS/98.

44 UNCLOS, supra note 4, Art. 136. Also see S. Voneky and A. Hofelmeier, ‘Article 136’, in Proelss, supra note 11, 949, at 954–5, para. 16.

45 See supra note 34 and its text.

46 UNCLOS, supra note 4, Art. 137(1); Voneky and Hofelmeier, supra note 44, at 960–2.

47 UNCLOS, ibid., Art. 137(2).

48 Ibid., Art. 187(b)(i) reads: ‘The Seabed Disputes Chamber shall have jurisdiction under this Part and the Annexes relating thereto in disputes with respect to activities in the Area falling within the following categories: … (b) disputes between a State Party and the Authority concerning: (i) acts … of a State Party alleged to be in violation of this Part or the Annexes relating thereto …’. See also ibid., Arts. 134(2), 137(1), 137(3).

49 Ibid., Art. 187(b)(i) reads: ‘The Seabed Disputes Chamber shall have jurisdiction under this Part and the Annexes relating thereto in disputes with respect to activities in the Area falling within the following categories … (b) disputes between a State Party and the Authority concerning: (i) … omissions of the Authority … alleged to be in violation of this Part or the Annexes relating thereto …’ (emphasis added). However, the chambered voting procedure of the Authority makes it uncertain for the Authority to act when it should.

50 Macnab, supra note 15, at 1, 11. See also Oude Elferink, supra note 15, at 110–12; McDorman, supra note 22; McDorman, supra note 15, at 319; Chircop, supra note 40; Jensen, supra note 16.

51 McDorman, supra note 25, at 192. See also ILA, Berlin Conference (2004) - Legal Issues of the Outer Continental Shelf (2004), at 2; Serdy, supra note 17, at 2099, para. 5.

52 UNCLOS, supra note 4, Art. 134(4).

53 Macnab, supra note 15, at 9.

54 Egede, supra note 15, at 50. See also ibid.; Llewellyn, supra note 25, at 692.

55 McDorman, supra note 15, at 320; McDorman, supra note 25, at 192; Serdy, supra note 17, at 2068, para. 3 and 2099, para. 5.

56 UNCLOS, supra note 4, Art. 137(1); Chircop, supra note 40; Oude Elferink, supra note 15, at 119–20; Serdy, supra note 17. However, McDorman argues that ‘… States are not restricted by the Convention in unquestionably exercising jurisdiction over shelf areas within any reasonable calculation of the Article 76 criteria outer limits’. See McDorman, supra note 25, at 191–2.

57 C. Symmons, ‘The Irish Partial Submission to the CLCS in 2005: A Precedent for Future Such Submissions in the Light of the “Disputed Areas” Procedures of the Commission’, (2006) 37 Ocean Development and International Law 299, at 303, 308; Serdy, supra note 17, at 2106–7.

58 UNCLOS, supra note 4, Art. 9 of Ann. II.

59 Rop, supra note 1, Art. 5(b) of Rop-Ann. I.

60 Ibid., Art. 1 (emphasis added).

61 McDorman, supra note 25, at 196; Oude Elferink, supra note 33, at 39; comparing with Egede, supra note 15, at 40.

62 Egede, ibid., at 38.

63 Rop, supra note 1, Art. 5(a) of Rop-Ann. I (emphasis added); see also M. Gau and G. Tang, ‘The Operation of the CLCS Facing Disputes: An Examination of the Rules and Practices’, (2021) 36 International Journal of Marine and Coastal Law 218, at 220–5.

64 Rop, ibid., Art. 2 of Rop-Ann. I.

65 Ibid., Art. 5(b). UNCLOS, supra note 4, Art. 9 of Ann. II; Oude Elferink, supra note 15, at 114; Egede, supra note 15, at 38–9.

66 Rop, supra note 1, Rop-Ann. I. Oude Elferink considers a dispute over the interpretation or application of Art. 76 to be part of the disputes under this category, as such a dispute is relevant to the consideration of a submission. See Oude Elferink, ibid., at 113.

67 Rop, ibid., Arts. 2(b), 4(b), 6 of Rop-Ann. I; Symmons, supra note 57, at 306; Llewellyn, supra note 25, at 683.

68 E.g., Symmons, supra note 57, at 308, 310; Serdy, supra note 17, at 2111, para. 11.

69 Egede had anticipated this situation, supra note 15, at 39, 41.

70 UNCLOS, supra note 4, Art. 121; Talmon, supra note 11.

71 The South China Sea Arbitration (Republic of Philippines v. People’s Republic of China), Award of 12 July 2016; PCA case no. 2013–19. The 2016 Award is available at pcacases.com/web/sendAttach/2086. For the part on interpretation of Art. 121, see at 119 and 204–32. For the application of such an interpretation to Itu Aba, see paras. 584, 591-593, 596, 600, 602–3, 608–13, 618–21, 623–5. Critical comments on this interpretation are, e.g., G. Hafner, ‘Some Remarks on the South China Sea Award: Itu Aba versus Clipperton’, (2016) 34 Chinese (Taiwan) Yearbook of International Law and Affairs 1; Y. Tanaka, ‘Reflections on the Interpretation and Application of Article 121(3) in the South China Sea Arbitration (Merits)’, (2017) 48 Ocean Development and International Law 365, at 373; Y. H. Song, ‘The July 2016 Arbitral Award, Interpretation of Article 121(3) of the UNCLOS, and Selecting Examples of Inconsistent State Practices’, (2018) 49 Ocean Development and International Law 24; M. S. T. Gau, ‘The Interpretation of Article 121(3) of UNCLOS by the Tribunal for the South China Sea Arbitration: A Critique’, (2019) 50 Ocean Development and International Law 49; Talmon, ibid.

72 Supra note 8. See two China’s Note Verbales and two Korea’s Note Verbales opposing Japan’s submission concerning Oki-no-Tori Shima as well as five Japan’s Note Verbales defending its own positions.

73 ‘… it shall not take action on the part of recommendations prepared by the Sub-commission in relation to the area of Oki-no-Tori Shima, until the Commission decides to do so’. See CLCS, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, UN Doc. CLCS/64 (2009), para. 26, available at undocs.org/en/clcs/64.

74 See note 82, infra.

75 Japan’s Submission to the Commission on the Limits of the Continental Shelf, Executive Summary, Sec. 4 (Relevant Maritime Delimitations) of the Executive Summary of Japan’s Submission, supra note 8, at 6, 8.

76 Ibid. See China’s two communications dated 6 February 2009 and 3 August 2011, and Korea’s communication dated 27 February 2009. Interestingly, instead of invoking Art. 5(a) of Rop-Ann. I, Korea invoked Sec. II.2(a)(v) of Rop-Ann. III.

77 CLCS, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, UN Doc. CLCS/62 (2009), para. 54, available at undocs.org/en/clcs/62.

78 But Palau does not oppose Japan’s submission. See Japan’s Submission to the Commission on the Limits of the Continental Shelf, Executive Summary, supra note 8, at 8.

79 UN Doc. CLCS/62, supra note 77.

80 CLCS, Progress of work in the Commission on the Limits of the Continental Shelf - Statement by the Chairperson, UN Doc. CLCS/72 (2011), para. 14, available at undocs.org/en/clcs/72.

81 Supra note 66 and its text.

82 UN Doc. CLCS/74, supra note 9, para. 19: ‘… The Commission considered that it would not be in a position to take action on the parts of the recommendations relating to the Southern Kyushu-Palau Ridge Region [KPR Region] until such time as the matters referred to in the communications referred to above had been resolved’. It appears that the CLCS did not rule out the possibility to take action on the KPR Region when an authoritative interpretation of Art. 121 becomes available from any competent agency.

83 Serdy, supra note 17, at 2107, para. 6; 2111, para. 11.

84 CLCS, Scientific and Technical Guidelines of the CLCS, adopted on 13 May 1999, Sec. 2.1.1, at 9. The text is available at www.un.org/depts/los/clcs_new/commission_documents.htm#Guidelines. See also CLCS, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, UN Doc. CLCS/64 (2009), paras. 24–5, available at undocs.org/en/clcs/64; UNCLOS, supra note 4, Arts. 1, 3(1)(a), 4 of Ann. II; Oude Elferink, supra note 15, at 111; Llewellyn, supra note 25, at 683, 692; Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar), supra note 42, para. 411.

85 UNCLOS, supra note 4, Art. 76(1) (emphasis added): ‘The entitlement to a continental shelf extends beyond that minimum distance where there is a submerged natural prolongation of the land territory beyond 200 nautical miles. This “natural prolongation” criterion is referred to in the Commission’s Scientific and Technical Guidelines as the “test of appurtenance”.’ See Llewellyn, supra note 25, at 681, 687.

86 Scientific and Technical Guidelines of the CLCS, supra note 84, at 12 (emphasis added).

87 Ibid., at 7; supra note 18; Oude Elferink, supra note 15, at 122–3 (emphasis added).

88 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, PCA case no. 2011-03, para. 447; quoting Affaire du lac Lanoux (Spain v. France), Award of 16 November 1957, XII RIAA 281, at 305.

89 Llewellyn, supra note 25, at 681, 687.

90 Rop, supra note 1, Sec. II-2(a)(v) of Rop-Ann. III. Also see the Korean communication dated 27 February 2009, supra note 76.

91 UNCLOS, supra note 4, Art. 121(3).

92 Scientific and Technical Guidelines, supra note 84, Sec. 1.1.

93 The Korean communication dated on 27 February 2009, supra note 76. See UN Doc. CLCS/64, supra note 73, para. 18.

94 UNCLOS, supra note 4, Art. 2(1) of Ann. II. See also Rop, supra note 1, Art. 5(a) of Rop-Ann. I. The CLCS members do not have legal expertise. The hands-off obligation under Art. 5(a) of Rop-Ann. I further negates the possibility for the CLCS to be capable of settling disputes.

95 Supra note 87 and its text.

96 See Section 2.3.2.

97 Supra note 82.

98 Ibid. To be noted, the CLCS at its 28th session discussed an agenda item (14) entitled ‘Mechanism to seek advice on matters of interpretation of certain provisions of the Convention other than those contained in its article 76, and annex II, as well as in the Statement of Understanding adopted on 29 August 1980 by the 3rd UN Conference on the Law of the Sea.’ One member then raised a question as to what the CLCS should do when a dispute arises among states relating to the interpretation of UNCLOS provisions that go beyond the mandate of the CLCS but have an impact on the determination of a Submission. A proposal was made at that meeting to seek advice from the UN Legal Counsel in such situations, which was also advocated by some renowned scholars. After extensive deliberations, the CLCS decided to defer this item to the 29th session. See UN Doc. CLCS/72, supra note 80, paras. 37–40.

99 Gau, supra note 10, at 501–2 (emphasis added); ILA, supra note 51, at 2–3, 5–6.

100 Supra note 13, and its text. The first sentence of Art. 76(8) reads: ‘Information on the limits of the continental shelf beyond 200 nautical miles … shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf …’ (emphasis added).

101 Scientific and Technical Guidelines of the CLCS, supra note 84, Sec. 1.1, and its text.

102 Supra notes 82 and 98. Also see the rationale of Korea’s communication dated on 27 February 2009 and China’s communication dated on 3 August 2011, supra note 8.

103 See Japan’s Submission to the Commission on the Limits of the Continental Shelf, Executive Summary, supra note 8, at 6, 21. For the recommendations of the CLCS concerning the ODR region, see Figure 1.

104 For Japan’s Submission concerning SKB see Japan’s Submission to the Commission on the Limits of the Continental Shelf, Executive Summary, supra note 8, at 6, 23. For the recommendations of the CLCS concerning the SKB region see supra note 12.

105 See supra note 2.

106 See supra note 12.

107 That is the southern triangle indicated by Figure 1 which was not recommended by the CLCS to be Japan’s outer continental shelf.

108 See supra note 2.

109 See Figure 1. To be noted, 24.5 degree NL was not indicated by Figure 27 expressly. Calculation was done by Dr. Y. X. Fang. What is certain is that the southernmost line of SKB as recommended by the CLCS in Figure 1 is not the outer limits of the EEZ generated by Oki-no-Tori Shima as claimed by Japan. Compare with Figures 1.1 and 6.7 in Japan’s Submission to the Commission on the Limits of the Continental Shelf, Executive Summary, supra note 8, at 6, 23.

110 Supra notes 9, 82.

111 Van Dyke, supra note 6.

112 See supra note 75 and its text.

113 UN Doc. CLCS/62, supra note 77, para. 54.

114 UN Doc. CLCS/74, supra note 9, para. 19.

115 See supra note 71.

116 On 12 December 2019 Malaysia presented its submission to the CLCS that attracted as many as 28 NVs as of 20 October 2021. The NVs from the Philippines (6 March 2020), Indonesia (26 May and 12 June of 2020), the US (1 June 2020), Australia (23 July 2020), UK (16 September 2020), Germany (16 September 2020), France (16 September 2020) and Japan (19 January 2021) all invoked the South China Sea Arbitration Award to criticize the NVs of China. These NVs are available at www.un.org/depts/los/clcs_new/submissions_files/submission_mys_12_12_2019.html.

117 See supra notes 6–7.

118 See Chen Yue, ‘China refuses South China Sea Arbitration Award’, CCTV Com, 12 June 2016, available at english.cctv.com/2016/07/12/ARTIjr51r1TgNtO707cDVGuE160712.shtml. Obviously, the Chinese Government would not accept the binding force and applicability of the 2016 Award’s interpretation of Art. 121(3) to the Oki-no-Tori Shima issues.

119 Talmon, supra note 11, at 874–7.

120 See supra note 82.

121 Anglo-Norwegian Fisheries (U.K. v. Norway), Judgment of 18 December 1951, [1951] ICJ Rep. 116, at 132; Serdy, supra note 17, at 2099–10, para. 6.

122 Oude Elferink, supra note 33, at 38.

123 UNCLOS, supra note 4, Art. 1(1)(1).

124 Ibid., Art. 137(1). See Sections 2.2.1–2.2.2.

125 Ibid., Art. 134(4). See Sections 2.2.1–2.2.2.

126 See Sections 2.2.1–2.2.2.

127 See Section 2.1.1.

128 See Sections 2.2.1–2.2.2.