Helga Law Journal - 01.01.2021, Blaðsíða 63

Helga Law Journal Vol. 1, 2021
64
Dr. Snjólaug Árnadóttir
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the first States Parties. However, this process proved more arduous than originally
expected69 and the deadline was postponed to 13 May 2009. This meant that the
earliest date would be 13 May 2009 and that for those States that became bound
by UNCLOS after 13 May 1999, the deadline would still be ten years after the
entry into force of the Convention for that State.70 Due to these complications,
States Parties also concluded that preliminary submissions would suffice to halt
the 10-year deadline for submissions.71
Article 4 of UNCLOS Annex II is not clear in regard to potential
consequences for non-compliance with the 10-year deadline. Oude Elferink has
argued that States might either be barred from submitting their data to the CLCS
after their deadline expires or that the CLCS would not be obligated to consider
any submissions after that time.72 However, this view is not widely held and
according to Judge Heiðar, ‘there is no sanction for failure to make a submission
within [the 10-year] period’.73
At the time of writing, 88 submissions have been made to the CLCS and the
CLCS has produced 35 recommendations. 74 The CLCS is expected to need a
couple of decades to go through all the submissions lodged with it so far.75 Thus,
it remains to be seen whether all the States that have made submissions to the
CLCS will ever acquire stable outer limits to continental shelves extending more
than 200 nm from baselines. In the meantime, some islands that currently generate
an entitlement to a continental shelf may be reduced to rocks, incapable of
sustaining human habitation or economic life, low-tide elevations or fully
submerged features. That might lead the CLCS to request further,

69 This was particularly difficult for certain developing States, see Somalia v Kenya (n 68) para 17.
70 UNCLOS: Meeting of States Parties ‘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’ (29 May 2001) UN Doc
SPLOS/72.
71 See UNCLOS: Meeting of States Parties ‘Decision regarding the workload of the [CLCS] and the
ability of States, particularly developing States, to fulfil the requirements of article 4 of Annex II to the
Convention, as well as the decision contained in SPLOS/72, paragraph (a)’ (20 June 2008) UN Doc
SPLOS/183.
72 Alex G Oude Elferink, ‘Article 76 of the LOSC on the Definition of the Continental Shelf: Questions
concerning its Interpretation from a Legal Perspective’ (2006) 21 (3) The International Journal of
Marine and Coastal Law 269, 279.
73 Tómas H Heiðar, ‘Legal Aspects of Continental Shelf Limits’, in Myron H Nordquist, John Norton
Moore and Tómas H Heiðar (eds) Legal and Scientific Aspects of Continental Shelf Limits (Martinus Nijhoff
2004) 19, 30.
74 DOALOS ‘Submissions, through the Secretary-General of the United Nations, 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 of 10 December 1982’ (UN 2021) available at:
<https://www.un.org/Depts/los/clcs_new/commission_submissions.htm> accessed 23 October
2021.
75 Alex G Oude Elferink, ‘The Continental Shelf in the Polar Regions: Cold War or Black-Letter Law?’
(2009) 40 Netherlands Yearbook of International Law 121, 133.
2.3 Permanently Described Continental Shelf Limits
Whereas all other maritime limits are established unilaterally by the coastal State,
limits to the continental shelf beyond 200 nm can be permanently established
through cooperation with an international body. UNCLOS article 76(8) provides
that ‘[i]nformation on the limits of the continental shelf beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured shall
be submitted by the coastal State to the [CLCS]’. In turn, the CLCS makes
recommendations relating to the establishment of the outer continental shelf limits
and ‘limits of the shelf established by a coastal State on the basis of these
recommendations shall be final and binding.’64 Furthermore, coastal States ‘shall’,
according to UNCLOS article 76(9), ‘deposit with the [UNSG] charts and relevant
information, including geodetic data, permanently describing the outer limits of its
continental shelf’ and the UNSG gives ‘due publicity thereto’.
The International Tribunal for the Law of the Sea (ITLOS) has confirmed
that the significance of the outer continental shelf limits being final and binding is
that it enhances ‘opposability with regard to other States’.65 ITLOS also noted, in
Bangladesh/Myanmar, that the continental shelf limits beyond 200 nm are opposable
to third States, despite being based on unilateral acts, as long as they are compliant
with UNCLOS article 76 and the recommendations of the CLCS.66
It is not entirely clear whether all continental shelf limits may be permanently
described or whether the exception only applies to the final and binding limits
beyond 200 nm. A reading of UNCLOS article 76(9) in conjunction with article
76(8) supports the conclusion that the stability is only afforded to limits beyond
200 nm. A majority of scholars endorses this interpretation.67 The alternative
would render UNCLOS article 84 (obligating States to describe continental shelf
limits to the UNSG) redundant.
Continental shelf limits can fluctuate until they are permanently described and
States cannot establish final and binding continental shelf limits without the
recommendations of the CLCS.68 Therefore, there is a matter of urgency in
acquiring CLCS recommendations, particularly where coastlines are receding.
Article 4 of UNCLOS Annex II provides that in order to receive recommendations
from the CLCS, States must submit relevant data to the commission ‘as soon as
possible but in any case, within 10 years of the entry into force of this Convention
for that State.’ The earliest deadline for submitting relevant data to the CLCS was,
therefore, 16 November 2004, ten years after the entry into force of UNCLOS for

64 UNCLOS article 76(8).
65 Bangladesh/Myanmar (n 62) para 407.
66 Ibid.
67 ILA Committee on the Outer Continental Shelf ‘Conference Report Toronto 2006’ (ILA 2006) 16.
68 UNCLOS article 76(8), see also Maritime Delimitation in the Indian Ocean (Somalia v Kenya)
(Preliminary Objections) [2017] ICJ Rep 1, para 66; Questions of the Delimitation of the Continental
Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast
(Nicaragua v Colombia) (Preliminary Objections) [2016] ICJ Rep 1, paras 107-108.