Dear Colleagues,
I congratulate Victor Prescott for introducing the topic of CLCS
confidentiality, as it’s been the subject of much commentary and private
discussion among Article 76 specialists. It’s also been identified in
some quarters as a cause for concern, to wit:
Under the present Rules of Procedure, there appears to be no formal
mechanism that will give interested third parties an opportunity to
assess the rationale that underlies a coastal state’s claim, or the
reasoning behind the Commission’s recommendations. Considering that a
continental shelf submission is a means of claiming ownership and
control over a portion of the “common heritage of mankind”, I’ve often
wondered why other states - in effect the co-owners of that common
heritage - have not demanded greater transparency in the process.
A related concern is how the closed nature of the CLCS process will
render it difficult if not impossible for individual coastal states to
take into account the Commission’s past recommendations when preparing
their own submissions: without an understanding of the information and
the arguments that figured in prior situations, these states have no
reliable way of evaluating whether a given approach is likely to meet
with the approval of the CLCS. This situation seems to deny the
principle of case law, and its influence in promoting predictability and
consistency in decisions handed down by courts and tribunals. Such
uncertainty might compel some claimant states to concentrate more time
and resources on the problem than they need or can afford, all in the
name of developing a submission that they hope will withstand the
scrutiny of the Commission.
An additional concern is the potentially unfair advantage that could
accrue: (a) to a claimant state that is represented on the CLCS, and
which avails itself of the services of its national representative in
formulating its own submission; or (b) to a claimant state that is not
so represented, but which engages the services of current or former CLCS
members acting in a consultative capacity (which is permitted under
Article 3 of UNCLOS Annex II). By virtue of their exposure to previous
deliberations of the CLCS, individuals so engaged could be expected to
possess privileged information that might be relevant to the case at
hand. While there is no suggestion that they would violate the
Commission’s confidentiality provisions, it is difficult to perceive how
this inside knowledge would not influence their thinking as they
rendered advice in the preparation of a submission that was calculated
to win the Commission’s favour.
Cheers! Ron
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Ron Macnab
Geological Survey of Canada (Retired)
Email: [log in to unmask]
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