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The Terms of Reference of the Commission on the Limits of the Continental Shelf: A Creeping Legal Mandate

Published online by Cambridge University Press:  06 February 2012

BJØRN KUNOY
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Abstract

The Commission on the Limits of the Continental Shelf is neither fish nor fowl. Its primary purpose is to consider coastal states’ proposed limits of the outer continental shelf and to make recommendations thereto. Albeit the establishment of the outer limits is an act within the sole discretion of a state, the role of the Commission in the establishment of such limits is of pivotal importance. Due to its mandate, it can reasonably be argued that the Commission is, by way of implication, deemed to be vested with rights that cannot be seen to be limited to a technical review stricto sensu. This paper seeks to determine the exact terms of reference of the Commission and to what extent it comprises powers to undertake legal interpretations of the Convention. It will be concluded that a fair balance governs the operations of the Commission, although they, at times, comprise tasks that are essentially of a legal nature.

Keywords

Commission on the Limits of the Continental ShelfKompetenz-Kompetenzterms of referencetreaty interpretation
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 25 , Issue 1 , March 2012 , pp. 109 - 130
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2012

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References

1 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 396 (hereafter, ‘Convention’).

2 Convention, Art. 76(8).

3 See, inter alia, the statement of the former Legal Counsel of the United Nations, Hans Corell, in the opening statement at the first session of the Commission, CLCS/1, 3. Further, De Marffy Mantuano has noted that the establishment of the Commission was necessary to bridge the gap between the broad-shelf states and those who wanted to limit the further seaward extension of national claims to the detriment of the Area: see De Marffy Mantuano, A., ‘La fixation des dernières limites maritimes: Le rôle de la Commission des Limites du Plateau Continental’, in Coussirat-Coustère, V. et al. (eds.), La mer et son droit: Mélanges offerts à Laurent Lucchini et Jean Pierre Quénedec (2003), 415.Google Scholar

4 On the ‘final and binding’ wording in Art. 76(8), McDorman implies that it does not ‘remove from other states their capacity to reject (protest and thus not accept) a state's continental shelf outer limit . . .. States are not deprived of their legal right to disagree with another's [sic] state's established outer limit even if that outer limit delineation can be said to be on the basis of Commission recommendations’; see McDorman, T., ‘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 315Google Scholar.

5 Oxman, B., ‘The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980)’, (1981) 75 AJIL 211, at 230CrossRefGoogle Scholar.

6 The Scientific and Technical Guidelines of the Commission on the Continental Shelf, UN Doc. CLCS/11 (13 May 1999), Point 1.3 (hereafter ‘Guidelines’).

7 Aegean Sea Continental Shelf Case (Greece v. Turkey), Jurisdiction, Judgment of 19 December 1978, [1978] ICJ Rep. 3, para. 86 (hereafter, Aegean Sea).

8 Wolfrum, R., ‘The Role of International Dispute Settlement Institutions in the Delimitation of the Outer Continental Shelf’, in Lagoni, R. and Vignes, D. (eds.), Maritime Delimitation (2006), 24Google Scholar.

9 Pursuant to Art. 3(1)(b) of Annex II to the Convention, the Commission shall also, if required, provide scientific and technical advice to coastal states that intend to submit data and material in support of outer limits to the Commission.

10 Oude Elferink has noted that the Commission ‘is an organ that has been assigned specific functions under the [Convention], including the task of making an independent evaluation of the submission of the coastal State in respect of the outer limits of the continental shelf . . .. This includes the question of whether the information that has been submitted to the Commission proves that the conditions set out in Article 76 are actually met for the specific outer limit lines proposed by a coastal State. At times this may require interpretations of specific provisions of Article 76’, Elferink, A. Oude, ‘The Continental Shelf beyond 200 Nautical Miles: The Relationship between the CLCS and Third Party Settlement’, in Elferink, A. Oude and Rothwell, D. (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Instruments (2004), 112Google Scholar.

11 Treves, T., ‘Remarks on Submissions to the Commission on the Limits of the Continental Shelf in Response to Judge Marotta's Report’, (2006) 21 International Journal of Marine and Coastal Law 363CrossRefGoogle Scholar, at 367.

12 Wolfrum, supra note 8, at 23.

13 Pursuant to Art. 96(2) of the UN Charter, ‘[o]ther organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities’. The requesting body must be vested with competence to request such advisory opinion from the Court – a determination based on Art. 96 of the UN Charter. In the Legality of Threat or Use of Nuclear Weapons Advisory Opinion, the Court determined that: ‘[f]or the Court to be competent to give an advisory opinion, it is thus necessary at the outset for the body requesting the opinion to be authorized by or in accordance with the Charter of the United Nations to make such a “request”’; see Legality of Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep. 226, para. 11.

14 Art. 20(2) of Annex VI to the Convention is considered to extend jurisdiction to non-state actors, including entities that are not vested with capacity to conclude treaties. Boyle argues that ‘Article 20(2) [of the ITLOS Statute] uses the word “agreement” without further qualification, suggesting not only that it need not be a treaty, but that the parties to it do not have to have the capacity to conclude treaties’; see A. Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’, (1997) 46 ICLQ 37, at 53. By contrast, pursuant to Rule 138(1) of the Rules of the Tribunal, it ‘may give an advisory opinion on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion’ (emphasis added). Given the language that stands in contrast to Art. 20(2) of Annex VI to the Convention, it is clear that the bodies requesting the advisory opinion must be vested with powers to conclude a treaty.

15 States parties to the Convention agree to disagree on whether the Meeting has powers to discuss matters of substance. For recent debate, see the Report of the Nineteenth Meeting of States Parties, UN Doc. SPLOS/203 (24 July 2009), paras. 11–14. Eiriksson has also argued that ‘from the point of view of form, I don't think, for example, that the Commission need feel bound to channel any questions of a legal nature it might have through the States Parties, which might have their own reasons not to want an answer’; see Eiriksson, G., ‘The Case of Disagreement between a Coastal State and the Commission on the Limits of the Continental Shelf’, in Nordquist, M., Moore, J. and Heiðar, T. (eds.), Legal and Scientific Aspects of Continental Shelf Limits (2004), 256Google Scholar.

16 Nelson, L., ‘The Continental Shelf: Interplay of Law and Science’, in Ando, N. et al. (eds.), Liber Amicorum Judge Shigeru Oda, Vol. 2 (2002), 1238Google Scholar.

17 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment of 20 February 1969, [1969] ICJ Rep. 3, para. 96 (hereafter, North Sea Continental Shelf Cases).

18 Croker, P., ‘The Commission on the Limits of the Continental Shelf: Progress to Date and Future Challenges’, in Nordquist, M. et al. (eds.), Legal and Scientific Aspects of Continental Shelf Limits (2004), 221Google Scholar.

19 Art. 77(3) of the Convention provides that the rights to the continental shelf ‘do not depend on occupation, effective or notional, or on any express proclamation’.

20 North Sea Continental Shelf Cases, supra note 17, at para. 19.

21 Ibid.

22 Excerpt from Art. 4 of Annex II to the Convention.

23 Eiriksson, supra note 15, at 258.

24 Oxman, supra note 5, at 230.

25 1958 Convention on the Continental Shelf, 499 UNTS 311. Art. 1(a) of that Convention confines the continental shelf ‘to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas’.

26 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, [2007] ICJ Rep. 659, para. 319.

27 Excerpt from Art. 76(8) of the Convention.

28 According to the Oxford English Dictionary, the definition of ‘review’ is as follows: ‘a new examination of something, with the possibility or intention of changing it if this is considered desirable or necessary’. J. Crowther (ed.), Oxford Advanced Learner's Dictionary of Current English (1995), 1007.

29 In Barbados v. Trinidad & Tobago, Award of 11 April 2006, para. 213, an arbitral tribunal constituted pursuant to Art. 287 and in accordance with Annex VII of the Convention held that ‘there is in law only a single “continental shelf” rather than an inner continental shelf and a separate extended or outer continental shelf’. A copy of the Award is available at www.pca-cpa.org/upload/files/Final%20Award.pdf.

30 North Sea Continental Shelf Cases, supra note 17, para. 19.

31 Excerpt from Art. 76(9) of the Convention.

32 Wolfrum, supra note 8, at 25. Pursuant to Art. 6(3) of Annex II to the Convention, as reflected in Rule 53(3) of the Rules of Procedure of the Commission, its recommendations are to be produced in two copies, one of which is submitted to the submitting coastal state and the other to the Secretary-General, the latter thus being vested with the possibility of cross-checking the consistency of the outer limits, deposited pursuant to Art. 76(9), with the recommendations.

33 Government of the State of Eritrea v. Government of the Republic of Yemen (Phase One: Territorial Sovereignty and Scope of the Dispute), Award of the Arbitral Tribunal of 9 October 1998, (1999) 114 ILR 48, para. 153.

34 Wolfrum, supra note 8, at 25.

35 Art. 137(3) reads as follows: ‘No State or natural or juridical person shall claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with this Part. Otherwise, no such claim, acquisition or exercise of such rights shall be recognized.’

36 This assumption applies only to outer limits that would extend further seaward than recommended by the Commission.

37 Pursuant to Art. 136 of the Convention, ‘[t]he Area and its resources are the common heritage of mankind’.

38 Anglo-Norwegian Fisheries Case (UK v. Norway), Judgment of 18 December 1951, [1951] ICJ Rep. 116, at 132. On the validity of unilateral delimitations, see also Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, [1984] ICJ Rep. 246, para. 87 (hereafter, Gulf of Maine); Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 24 February 1982, [1982] ICJ Rep. 18, para. 87.

39 On this issue, see also McDorman, who advocates that the ‘final and binding’ wording does not remove from other states their capacity to reject the validity of outer limits being based on the recommendations of the Commission. McDorman, supra note 4, at 315.

40 See B. Kunoy ‘Legal Problems Relating to Differences Arising between Recommendations of the CLCS and the Submission of a Particular State’, in C. Symmons (ed.), Current Problematic Issues in the Law of the Sea (2011), 305–38.

41 As noted by Judge Rangel, ‘the alternative of an agreement between the Commission and the discontented coastal state for this purpose could be considered. It shall be discarded, however, because this hypothetical agreement would go against the Commission's very nature and raison d'être’; see V. Rangel, ‘Settlement of Disputes Relating to the Delimitation of the Outer Continental Shelf: The Role of International Courts and Arbitral Tribunals’, (2006) 21 International Journal of Marine and Coastal Law 347, at 359.

42 Seaward demarcation of the continental shelf is not one of the optional exceptions to compulsory dispute settlement mechanisms under Part XV, Section 2, allowed under Part XV, Section 3. See Eiriksson, supra note 15, at 258.

43 It is not the purpose of this paper to analyse which states would be vested with locus standi to challenge the validity of outer limits that are not established on the basis of the recommendations of the Commission. On this issue, see Noyes, J., ‘Judicial and Arbitral Proceedings and the Outer Limits of the Continental Shelf’, (2009) 42 Vand. JTL 1211Google Scholar.

44 Guidelines, supra note 6.

45 Air Services Agreement of 27 March 1946 (United States of America v. France), (1978) 18 Reports of International Arbitral Awards 415.

46 Excerpt from Art. 31(3)(a) of the Vienna Convention.

47 Pursuant to Art. 31(3)(a) of the Vienna Convention, the interpreter of a treaty shall take into account, in addition to the context, ‘any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’.

48 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331 (hereafter,‘Vienna Convention’).

49 Pursuant to Art. 31(3)(b) of the Vienna Convention, the interpreter of a treaty shall take into account, in addition to the context, ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties to its application’.

50 Such practice would need to be consistently, and in a uniform manner, practised by states parties to constitute a ‘subsequent practice’; see Legal Consequences for States of the Continued Presence of South Africa in Namibia Notwithstanding Security Council Resolution 276, Advisory Opinion, [1970] ICJ Rep. 22, para. 22. On this issue, see also A. Aust, Modern Treaty Law and Practice (2000), 193.

51 Guidelines, supra note 6, Point 1.2.

52 Ibid., Point 1.3 (emphasis added).

53 Ibid.

54 Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory), Judgment of 16 December 1927, PCIJ Rep., (1927) Series A No. 13, at 10 (the French version was authoritative).

55 Ibid.

56 Excerpt from Art. 76(5) of the Convention.

57 Guidelines, supra note 6, Point 4.4.2 reads as follows: ‘The selection of the most salient points along the 2,500 m isobath for the purpose of delineating the 100 M limit may be straightforward when isobaths are simple. However, when isobaths are complex or repeated in multiples, the selection of points along the 2,500 m isobath becomes difficult. Such situations arise as a result of geological and tectonic processes shaping the present continental margins. They can create multiple repetitions of the 2,500 m isobath, for example, by faulting, folding and thrusting along continental margins. Unless there is evidence to the contrary, the Commission may recommend the use of the first 2,500 m isobath from the baselines from which the breadth of the territorial sea is measured that conforms to the general configuration of the continental margin.’

58 Guidelines, supra note 6, Point 4.4.2.

59 Only excerpts of the recommendations are publicly available. Rule 11(3) of Annex III to the Rules of Procedure of the Commission reads as follows: ‘The recommendations prepared by the sub-commission shall include a summary thereof, and such summary shall not contain information which might be of a confidential nature and/or which might violate the proprietary rights of the coastal State over the data and information provided in the submission. The Secretary-General shall make public the summary of the recommendations upon their approval by the Commission.’

60 Commission on the Continental Shelf, Summary of Recommendations of the Commission 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, Adopted by the Commission on 27 March 2009, para. 77 (emphasis added), available online at www.un.org/Depts/los/clcs_new/submissions_files/nor06/nor_rec_summ.pdf (hereafter, ‘Norway Summary Recommendations’).

61 For a critical view on the approach of the Commission with regard to applicable 2500-m depth points in relation to the construction of depth-constraint lines, see B. Kunoy, M. V. Heinesen, and F. Mørk, ‘Appraisal of Applicable 2,500m Depth Constraint Lines for the Purpose of the Delineation of the Outer Limits of the Continental Shelf’, (2010) 41(4) Ocean Development & International Law 357.

62 Excerpt from Art. 76(5) of the Convention.

63 Excerpt from Art. 76(6) of the Convention.

64 Guidelines, supra note 6, Point 2.1.10.

65 Norway Summary Recommendations, supra note 60, para. 68. See also recommendations of the Commission to New Zealand in which the Commission accepts that the Kermadec and Colville Ridge system, as well as the Three Kings Ridge with the Fantail Terrace, are submarine elevations that are natural components of the continental margin and therefore the application of the depth constraint may be applied from these elevations as submitted by New Zealand, ‘Summary of Recommendations of the Commission in Regard to the Submission Made by New Zealand on 19 April 2006, Adopted by the Commission on 22 August 2008’, para. 145. The same reasoning underlies the acceptance for the application of the depth constraint of the Challenger Plateau and Lord Howe Rise, Point 192, available online at www.un.org/depts/los/clcs_new/submissions_files/nzl06/nzl_summary_of_recommendations.pdf.

66 Guidelines, supra note 6, Point 7.3.1 (emphasis added).

67 H. Brekke and P. Symonds, ‘The Ridge Provisions of Article 76 of the UN Convention on the Law of the Sea’, in Nordquist, Moore, and Heiðar, supra note 15, at 189.

68 Symonds, P. A., Coffin, M. F., Taft, G., and Kagami, H., ‘Ridge Issues’, in Cook, P. J. and Carleton, C. M. (eds.), Continental Shelf Limits: The Scientific and Legal Interface (2000), 301Google Scholar (emphasis added).

69 Oxman, B. H., ‘The Third United Nations Conference on the Law of the Sea: The Seventh Session (1978)’, (1979) 73 AJIL 21CrossRefGoogle Scholar (emphasis added).

70 Summary of Recommendations of the Commission on the Limits of the Continental Shelf in regard to the Submission made by Australia on 15 November 2004, Recommendations adopted by the Commission on 9 April 2008, para. 51, available online at www.un.org/Depts/los/clcs_new/submissions_files/aus04/aus_summary_of_recommendations.pdf.

71 Ibid., para. 138.

72 Ibid.

73 Ibid., para. 49.

74 In this regard, reference may be made to the submission of the government of the Kingdom of Denmark together with the government of the Faroes on 2 December 2010 with regard to the Faroe Rockall Plateau Region, the proposed outer limits of which extend approximately 820 M from the baselines, and the submission of Iceland on 29 April 2009 with regard to the Eastern Reykjanes Ridge, the outer limits of which extend approximately 750 M from the baselines, available online at www.un.org/depts/los.

75 Case Concerning the Payment in Gold of Brazilian Federal Loans Contracted in France (France v. Brazil), Judgment of 12 July 1929, PCIJ Rep., (1929) Series A No. 21, at 124.

76 Interpretation of the Greco-Turkish Agreement of December 1st, 1926 (Final Protocol, Article IV), Advisory Opinion of 28 August 1928, PCIJ Rep., (1928) Series B No. 16, at 20.

77 Mavrommatis Palestine Concessions (Greece v. UK), Judgment on Jurisdiction of 30 August 1924, PCIJ Rep., (1924) Series A No. 2, at 16.

78 Certain German Interests in Polish Upper Silesia (Germany v. Poland), Judgment of 25 August 1925 (Preliminary Objections), PCIJ Rep., (1925) Series A No. 6, at 18. On incidental powers, see also Prosecutor v. Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995, paras. 20–22, available online at www.icty.org/x/cases/tadic/acdec/en/51002.htm.

79 See, e.g., Summary of 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 by the Commission on 15 April 2010, para. 8, available online at www.un.org/Depts/los/clcs_new/submissions_files/gbr08/gbr_asc_isl_rec_summ.pdf (hereafter, ‘Recommendations regarding Ascension Island’), in which the Commission states that it ‘makes these Recommendations to the United Kingdom in fulfillment of its mandate as contained in Article 76, paragraph 8, and articles 3 and 5 of Annex II to the Convention’; see also para. 8 of the Summary of Recommendations of the Commission in regard to the Joint Submission made by Mauritius and Seychelles concerning the Mascarene Plateau Region on 1 December 2008, adopted by the Commission on 30 March 2011.

80 Oude Elferink, supra note 10, at 112.

81 Art. 176 of the Convention reads: ‘The Authority shall have international legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.’

82 Golitsyn argues that, given that the Tribunal has concluded a relationship agreement with the UN, ‘[i]t may be assumed that the Meeting of States Parties has acquiesced to the fact that the Tribunal has its own legal personality’. Golitsyn, V., ‘Interrelation of the Institutions under the Law of the Sea Convention with Other International Institutions’, in Vidas, D. and Østreng, W. (eds.), Order for the Oceans at the Turn of the Century (1999), 140Google Scholar.

83 In its first judgment in the Nottebohm case dealing with Guatemala's jurisdictional objections, the Court affirmed the Kompetenz-Kompetenz principle as a principle of international law: ‘Since the Alabama case, it has been generally recognised, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction’. Nottebohm Case (Liechtenstein v. Guatemala), Preliminary Objection, Judgment of 18 November 1953, [1953] ICJ Rep. 111, at 119.

84 The Government of Sudan v. The Sudan People's Liberation Movement/Army, Final Award, 22 July 2009, available online at www.pca-cpa.org/showpage.asp?pag_id=1306 (hereafter, ‘Abyei Arbitration Award’).

85 The Abyei Appendix was attached to the Abyei Protocol, signed on 26 May 2004, pursuant to which the ABC Expert Commission was required ‘to listen to representatives of the people of Abyei Area and their neighbours, [as well as to] listen to presentations of the two Parties’ (Abyei Appendix, Section 3), and to ‘consult the British Archives and other relevant sources on Sudan wherever they may be available, with a view to arriving at a decision that shall be based on scientific analysis and research’ (Abyei Appendix, Section 4); see the Protocol between the government of the Sudan and the Sudan People's Liberation Movement/Army on the Resolution of Abyei Conflict, 26 May 2004, available online at www.sudantribune.com/IMG/pdf/20040527_abyei_protocol.pdf.

86 Abyei Arbitration Award, supra note 84, para. 502.

87 Ibid., para. 503.

88 Abyei Appendix, supra note 85, Section 5.

89 K. Kaikobad, The International Court of Justice and Judicial Review (2000), 34.

90 De Marffy Mantuano, supra note 3, at 403.

91 Recommendations regarding Ascension Island, supra note 79.

92 See the note communicated by the Permanent Mission of the United Kingdom addressed to the Secretariat of the United Nations on 11 January 2011, available online at www.un.org/Depts/los/clcs_new/submissions_files/submission_gbr.htm.

93 Recommendations regarding Ascension Island, supra note 79, paras. 19–20.

94 Statement by the Chairperson of the Commission on the Progress of Work in the Commission, UN Doc. CLCS/66 (30 April 2010), Item 5, para. 17.

95 Pursuant to Art. 76(3)(5)–(6) of the Convention, oceanic ridges do not generate entitlement beyond 200 m, while the outer edge of the continental margin that stems from a submarine ridge may be delineated by the 350-m constraint distance line, while the outer edge of the continental margin that stems from a submarine elevation may be delineated either by the 350-m constraint distance line or the 2500-m depth constraint + 100 m.

96 Reproduced in the Statement by the Chairperson of the Commission on the Progress of Work in the Commission, supra note 94, Item 5, para. 17.

97 See the note from the United Kingdom communicated to the United Nations Secretary General on 11 January 2011 in which it is held that the ‘United Kingdom has already expressed doubts as to whether the approach of the Commission to the United Kingdom submission is entirely consistent with the provisions of the Convention’, supra note 92.

98 Recommendations regarding Ascension Island, supra note 79, para. 44 (emphasis added).

99 The Commission held that it ‘recognises that islands surmounting discrete morphological features (including ridges) rising from this deep ocean floor are entitled to a “continental margin” and “continental shelf” (Article 76, paragraphs 1 and 3) . . .. Whether such islands are entitled to establish outer limits to their continental shelves beyond 200 M depends on the location of the base and the FOS within the submerged prolongation of those islands.. . . For this to be the case for a small oceanic island like Ascension, it would have to surmount a discrete seafloor high, that itself rises above the average “ruggedness” of the deep ocean floor . . .. The United Kingdom regards the rift valley of the spreading axis and the deeps of associated fracture zones as parts of the continental slope of Ascension Island. However, in the view of the Commission, ocean spreading structures, which are normally part of the deep ocean floor, can only form the continental slopes of island landmasses in cases where such structures form part of the discrete seafloor highs from which the island edifices rise. This is not the case for Ascension Island, as its edifice is not morphologically connected to any such discrete seafloor high’. Ibid., paras. 43–45.

100 Ibid., para. 50.

101 Ibid., para. 54.

102 Statement by the Chairperson of the Commission on the Progress of Work in the Commission, supra note 94, Item 5, para. 17.

103 Wolfrum, supra note 8, at 23.

104 In its note of 11 January 2011, supra note 92, the United Kingdom communicated to the UN Secretary-General that it ‘will 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 nautical miles on the basis of mid-ocean ridges’.

105 The United Kingdom expressed in its note of 11 January 2011, ibid., ‘that there are issues of legal interpretation upon which the Commission would have benefited from taking expert legal advice before concluding its deliberations’.

106 In accordance with Art. 8 of Annex II to the Convention, a coastal state shall, in the event of a disagreement with the Commission, make a revised or new submission to the Commission. That obligation must be seen to imply an obligation to seek on a reasonable basis to reach an agreement with the Commission without imposing a dialogue à l'infini. On this issue, see Kunoy, supra note 40.

107 Jarmache, E., ‘A propos de la Commission des Limites du Plateau Continental’, (2006) XI Annuaire du droit de la mer 55Google Scholar.

108 Jarmache, E., ‘La pratique de la Commission des Limites du Plateau Continental’, (2008) LV Annuaire français de droit international 432Google Scholar.

109 De Marffy Mantuano, supra note 3, at 399–419; see also, e.g., Report of the Nineteenth Meeting of States Parties, supra note 15, at para. 72, in which some delegations suggested that ‘the Commission might provide the Meeting with a list of legal issues on which it required guidance’. Yet, other delegations expressed the view ‘that the Commission did not have competence to identify issues of a legal nature in the examination of submissions’.

110 Treves, supra note 11, at 367.

111 Arts. 31 and 32 of the Vienna Convention reflect customary international law: see Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment of 3 February 1994, [1994] ICJ Rep. 6, para. 41. The above was also confirmed by the World Trade Organization Appellate Body in its reports on US – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (29 April 1996); and Japan – Taxes on Alcoholic Beverages II, WT/DS8/AB/R (4 October 1996).

112 International Law Commission, ‘Commentaries on the Articles on the Law of the Treaties (1966)’, (1966) 2 YILC 187, at 220Google Scholar.

113 According to the Court, recourse should only be made to supplementary means of interpretation if the provisions in a treaty are not clear: ‘[t]he Court considers that the text is sufficiently clear; consequently it does not feel that it should deviate from the consistent practice of the [PCIJ], according to which there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself’; see Admission of a State to the United Nations, Advisory Opinion of 28 May 1948, [1948] ICJ Rep. 57, at 63.

114 Legal Status of Eastern Greenland (Denmark v. Norway), Judgment of 5 September 1933, PCIJ Rep., (1933) Series A/B No. 53, at 49.

115 Excerpt from Art. 3(1)(a) of Annex II to the Convention.

116 It is of interest to note that former UN Legal Counsel Hans Corell has observed that the role of the UN Secretariat implies an engagement with ‘the crucial task of assisting [the Commission] in interpreting the relevant provisions of the Convention’; see Corell, H., ‘Future Role of the United Nations in Oceans and Law of the Sea’, in Nordquist, M. and Moore, J. (eds.), Oceans Policy: New Institutions, Challenges and Opportunities (1999), 19Google Scholar. However, the states parties would not seem to agree as to the interpretative role and functions of the UN Legal Counsel in that regard, at least with regard to Convention provisions of a substantive nature: see, e.g., Report of the Nineteenth Meeting of States Parties, supra note 15, para. 73, in which the consultative role of the UN Legal Counsel was debated – a discussion that clearly demonstrates that states parties are in disagreement as to and to what extent the Commission may request legal opinions on matters of substance from the UN Legal Counsel.

117 In Question of Jaworzina, the Permanent Court of International Justice held that ‘the right of giving an authoritative interpretation of a legal rule belongs solely to the person or body who has the power to modify or suppress it’, Delimitation of the Polish–Czechoslovakian Frontier (Question of Jaworzina), Advisory Opinion of 6 December 1923, PCIJ Rep., (1923) Series B No. 8, at 37.

118 B. Oxman, ‘The Commission on the Limits of the Continental Shelf: Some Reflections on the Rights and Duties of Coastal States and Other States with Respect to the Limits of the Continental Shelf’, presentation delivered at colloquium on ‘Shared Borders and Dividing Lines: A Century of Canada–US Territorial and Boundary Disputes’, held at the University of Montreal on 11 December 2009.

119 See Kunoy, supra note 40.

120 Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory), supra note 54, at 10.

121 Jarmache, supra note 107, at 436.