Dear Victor,

First of all, allow me to make a minor point. You have referred to Rule 51 
(Recommendations of the Commission) of the 1998 version of the Rules of 
Procedure (RoP). However, there is now a 2001 version of the RoP, in which 
the issue “Recommendations of the Commission” appears in Rule 52. The point 
is substantively minor insofar as the contents of the two provisions are 
exactly the same.

As to the problem that you have raised, I believe that the implications are 
far reaching, and touch in very important points. The way I see it, 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.

To answer your first question directly, I do not think that the 
recommendations of the CLCS are to be made public. Rule 52(1) states that 
they “shall be submitted in writing to the coastal State which made the 
submission and to the Secretary-General”. Only the coastal state and the 
UN/SG will have access to it. This seems to be confirmed by Rule 53 (Due 
Publicity). According to it, the coastal states “shall deposit with the 
Secretary-General charts and relevant information, including geodetic data, 
permanently describing the outer limits of its continental shelf” – only the 
description of the outer limits is comprised by the requirement of 
publicity; the data on which such limits are based does not have to be 
disclosed. Since the Commission’s recommendations dwell on the data provided 
by the coastal state, it is difficult to see how one could disclose the 
recommendations without also disclosing at least the part of the data to 
which the recommendations refer. And this is the problem. By the way, if you 
read the last statement of the Chairman of the CLCS (CLCS/34, 01 July 2002), 
which makes reference to the recommendations made in relation to the 
submission of the Russian Federation, it confirms that only the coastal 
state and the UN/SG will have access to it (cf. para.33).

The second question that you ask leads to rather complex issues, which 
involve the crucial problem of the final and binding nature of the outer 
limit of the CS beyond 200 M proclaimed by the coastal state in accordance 
with the recommendations of the CLCS. As I see it, the question is not so 
such much whether the CLCS has any power in relation to “controlling” 
whether the coastal state has implemented its recommendations adequately, 
but rather whether all states are bound by the limit that is based on the 
Commission’s recommendations.

In effect, Article 4 of Annex II to the LOSC compels states to “submit 
particulars of such limits” to the Commission. And it is in relation to the 
“particulars of such limits” that the Commission will make pronouncements. 
If I am seeing the issue correctly, then the recommendations of the 
Commission ought to be sufficiently detailed to ensure that the outer limits 
established by the coastal state pursuant to such recommendations raise no 
difficulties. Should these limits spill over the “bounds” of the 
Commission’s recommendations, the Commission appears to be entitled to state 
that the state has not abided by its recommendations.

In my view, the problem of third states concerns Article 76(8) “in fine” of 
the LOSC: “The limits of the shelf established by a coastal State on the 
basis of these recommendations shall be final and binding.” Does the “final 
and binding” nature of the outer limits established by the state mean that 
all states parties to the LOSC are bound thereby? It might be argued that to 
the extent that a state has accepted the obligations imposed by the LOSC (by 
ratification or accession), it has implicitly accepted that the limits 
established in accordance with the LOSC procedure are binding on it. Or to 
put it differently, after the LOSC procedure involving the CLCS is fully and 
duly completed, the limits established by the coastal state cannot be 
challenged by other states parties.

I would venture to disagree. The “final and binding” nature of the limits 
established in accordance with the LOSC procedure (i.e. through the CLCS) 
concerns only the coastal state involved in the procedure. Its aim is to 
impede the coastal state to reopen the issue in the future – even if it 
comes to realise that it could have claimed wider areas. It is a matter of 
certainty of the international legal order. Should this rule not exist, then 
the coastal state could always come back later arguing that it had obtained 
data that justified a “wider” outer limit of the CS.

Third states, including those which are parties to the LOSC, are initially 
not bound by the outer limits established pursuant to the Commission’s 
recommendations. What might happen is that they subsequently acquiesce to 
them, or recognise them. Since third states have no knowledge of the data 
submitted by the coastal state, or of the recommendations of the CLCS in 
relation to them, they are in no position to substantively challenge such 
data, and their interpretation under the LOSC. To suggest that they must 
accept the recommendations of the CLCS, and the limits derived therefrom, 
without giving them the possibility to legally and scientifically contradict 
the submission made by the coastal state seems to me an unreasonable burden 
from the legal standpoint. That interpretation does not appear to be in line 
with the intention of Third Conference; nor does it stem from an objective 
appraisal of the LOSC provisions.

What third states can do, and should do in situations where their rights 
might be in question, is to reserve their position in relation to the limits 
established. In this regard, it should be noted that some states have 
already “reacted” to the limit claimed in the submission of the Russian 
Federation, which was already publicised. Japan, the USA, Canada, and 
Denmark – in different ways and on different grounds – have safeguarded 
their legal rights in relation to the outer limit claimed by the Russian 
Federation in its submission. By contrast, Norway has consented to the 
examination of the submission in an area disputed with the Russian 
Federation. In any event, Article 76(10) of the LOSC makes clear that the 
whole process is “without prejudice to the question of delimitation of the 
continental shelf between States with opposite or adjacent coasts”.

I hope that these thoughts help to sparkle a debate on this very important 
issue. Can you please relay to me (or to the whole Int-Boundaries List) any 
comments or feedback that are addressed only to you? I, personally, would be 
very grateful.

Kind regards,
Nuno
____________________________



>From: John Robert Victor Prescott <[log in to unmask]>
>Reply-To: John Robert Victor Prescott <[log in to unmask]>
>To: [log in to unmask]
>Date: Thu, 22 Aug 2002 12:46:22 +1000
>
>Dear Colleagues, I wonder whether someone with a legal bent might be able
>to answer the following question? Rule 51 of the Rules of Procedure
>[Commission on the Limits of the Continental Shelf, 1998]notes that the
>recommendations of the Commission regarding an application from a state
>will be submitted in writing to the Secretary-General and to the claimant
>state. Are those recommendations then made public?
>
>The reason for asking this is that only with knowledge of the
>recommendations can a third party judge whether the boundary proclaimed by
>the coastal state  rests 'on the basis of these recommendations' [Article
>76 (8)]. The Commission itself does not seem to have the power to make such
>an assessment.
>If this point has already been dealt with in the literature I apologise for
>not having encountered it. Sincerely, Victor Prescott
>
>JRV  and DF Prescott
>44,Lucas Street,
>East Brighton
>Victoria 3187
>AUSTRALIA
>
>Phone 61 3 9592 5156
>Fax 61 3 9593 1624


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