Dear Victor,
Dear Chris,
Dear Colleagues,
I believe that the questions concerning Article 76 are far from having been
fully answered. I would dare to say that in many respects, we have barely
scratched the surface. Allow me therefore, in very brief terms (considering
the problems that are subsumed in this issue), to add further food for
thought.
Chris’ view on Article 76(8) – i.e. that “if the final outer limit claimed
and declared by the claiming State follows the recommendations by the CLCS
and is in accordance with the provisions of Article 76, then if effectively
forms a ‘maritime boundary’ between that State and the International Sea Bed
Authority” – is (in principle) perfectly correct. The problem is that the
assumptions underlying this statement raise some difficulties. How does a
third state know that the outer CS limit of the submitting state followed
the recommendations of the CLCS? More importantly, how does a third state
know that such a limit is indeed in accordance with Article 76?
Accepting Chris’ view without qualification would mean that third states
must accept an outer CS limit the legal-scientific basis of which is known
only to the CLCS, the submitting coastal state, and the UN/SG. The reality
is that third states – more correctly, everybody other than the CLCS, the
submitting coastal state, and the UN/SG – have (in principle) no access to:
a) the data provided by the submitting coastal state;
b) the legal-scientific argument presented by the coastal state in support
of its outer CS limit;
c) the recommendations of the CLCS.
Simply put, this appears to mean that the actions of the CLCS would not be
open to scrutiny by anybody: third states, courts, international
institutions, etc. Furthermore, the dispute settlement procedures of the
LOSC would ‘de facto’ not be applicable to this issue – for one cannot apply
the law without knowing the facts to which the law is being applied. The
problem however, is that I see in no part of the LOSC any provision that
allows me to conclude that states wanted to exclude (or that the LOSC does
indeed exclude) the application of Article 76 from the dispute settlement
procedures of Part XV.
Consider the following example. A submitting coastal state argues that a
certain elevation in the seabed is a ‘submarine elevation’. On this basis,
it goes on to extend its outer CS limit beyond 350 M (subject to the
‘2500-isobath+100M’ cut-off limit) – cf. Article 76(6). If a third state
considers that the said elevation in the seabed is a ‘submarine ridge’, and
that the 350 M cut-off limit should apply instead, how can it challenge the
CLCS decision (legally or scientifically) without having any knowledge of
the facts upon which the decision was based?
The problem that Chris raises as regards consistency in the Commission’s
decision, is in my view no more than a particular sub-type of a wider issue:
how to scrutinise the decisions of the CLCS (legally and scientifically)?
Many tentative answers may be advanced (which I do not do here for reasons
of brevity), but no straightforward answer seems to exist. What seems clear
is that, without knowing the evidence, neither the correctness of the outer
CS limit, nor the consistency in the assessments made by the CLCS in
relation to such limits, can be appraised by ‘third parties’ (whoever they
are).
This is why I said in my previous email that “the question revolves above
all around, on the one hand, the confidentiality of the data provided by the
coastal state and, on the other hand, the degree of publicity that is always
required by law”. As no state can be compelled to release data concerning
its CS (for various reasons), the only way to balance this with the
‘principle of publicity’ inherent in law is to allow third states to reserve
their legal positions. Should the submitting coastal state consider that it
is in its best interest to disclose the relevant data with a view to
demonstrate the legal validity of the limit it delineated, it may do so. And
the limit may then be openly scrutinised.
Allow me two more points.
First, in its statement on the submission of the Russian Federation, Denmark
asserted ‘inter alia’: “Denmark is not able to form an opinion on the
Russian submission. A qualified assessment would require specific data. Such
absence of opinion at this moment does not imply Denmark’s agreement or
acquiescence to the Russian Federation’s submission.” Insofar as it is
unlikely that the Russian data and the related CLCS recommendations and
future assessments are made public, it seems to me that Denmark will
reaffirm this view once the outer CS limit is finally established. There is
thus state practice supporting the suggestion that I have made here.
Secondly, no one can argue against the idea that all states are entitled to
a 200 M EEZ, that states can proclaim their outer 200 M limit, and that (to
the extent that the EEZ comprises the seabed and subsoil) this limit “forms
a ‘maritime boundary’ between that State and the International Sea Bed
Authority” (to use Chris’ words). However, none of this is enough to prevent
a third state from reserving its position in relation to such limit – for
example, on the basis of the argument that one or more basepoints used to
compute the limit are ‘unusable’ (e.g. because according to the information
that this state holds such a basepoint or basepoints belong to the LW line
of a low-tide elevation located outside the 12 M limit). If this is possible
in relation to a limit that (from a theoretical standpoint) raises little or
no difficulty, than ‘a fortiori’ it must be possible in relation to a limit
the delineation of which involves many, complex legal-scientific issues – in
particular taking into account that the CLCS is a body of scientific
expertise, and that the interpretation of the data in light of the LOSC
provisions raises several legal issues for which the CLCS (as a scientific
body) should perhaps not be accountable.
Kind regards to you all,
Nuno
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