A number of maritime delimitation disputes, the resolution of which has been referred to international courts or tribunals, include overlapping outer continental shelf claims without relevant recommendations from the Commission on the Limits of the Continental Shelf (CLCS) in support of the claimed entitlements. The case law of courts and tribunals regarding the exercise of jurisdiction over such disputes has developed and appears now somewhat crystallized in a common understanding. Yet numerous uncertainties remain, which have arisen from the non-homogeneous approaches that underlie the decisions of courts and tribunals to exercise jurisdiction in the absence of recommendations from the CLCS. While courts and tribunals share the view that delimitation necessarily requires a prior determination of entitlement, differences appear in defining the threshold for ascertaining such a determination. In any event, treating submissions to delimit such claimed overlaps as admissible in the absence of recommendations from the CLCS may entail significant risks. Where a plea is considered admissible, a court or tribunal will not have unfettered discretion as to whether to exercise jurisdiction. This may result in unfortunate situations as it cannot be assumed that the CLCS will accept coastal states’ proposed outer limits of the continental shelf.

En mai 2019, le Canada a présenté sa soumission concernant son plateau continental étendu arctique à la Commission des limites du plateau continental. La délinéation des plateaux continentaux étendus, conformément à la Convention des Nations Unies sur le droit de la mer, résulte d’interprétations dans lesquelles s’entrelacent arguments scientifiques et juridiques à l’égard d’une situation géophysique singulière. Cet article examine la manière dont le Canada a composé avec la triple interprétation juridique, scientifique et factuelle à travers une étude articulée autour de la notion de “prolongement naturel.” Sont mis en relief les défis interprétatifs, mais aussi les opportunités que le Canada a saisies en participant au dégagement de consensus scientifiques et juridiques au soutien de la délinéation qu’il propose.

Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS) sets out the legal regime governing the novel ‘continental shelf beyond 200 nautical miles’ or ‘the outer continental shelf’. As Article 76 contains a complex interface between law and science, its interpretation and application raises intricate issues, with which no international court or tribunal had dealt with substantively before 2012. The UNCLOS dispute settlement bodies were the first international tribunals to provide answers to long-standing questions surrounding the meaning and application of several important, but ambiguous or controversial, legal terms employed under Article 76. As such, the decisions rendered by the UNCLOS tribunals have been seen as playing an important role in elucidating the legal regime of the outer continental shelf. This article queries this assessment by critically examining whether and to what extent the relevant pronouncements made by UNCLOS tribunals have contributed to clarifying and developing the law governing the outer continental shelf regime under UNCLOS.

The legal and technical issues relating to the outer continental shelf entitlements in the Central Arctic Ocean present several challenges, most of which are to be resolved in accordance with Article 76 of the United Nations Convention on the Law of the Sea. Recently, two coastal States in the Central Arctic Ocean have made fully fledged submissions relating to the Arctic to the Commission on the Limits of the Continental Shelf. Russia has made a revised submission that is currently being considered by the Commission on the Limits of the Continental Shelf. The submission of Denmark/Greenland will most likely only be considered in 10 or 15 years time.

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.

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.