The Delimitation of Outer Continental Shelf Areas: A Critical Analysis of Courts’ and Tribunals’ Heterogeneous Approaches

Abstract

AbstractA 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.