Towards establishing a stable regime for seabed ... · 1 - Submarine ridge (Art. 76, §6) 2 -...

Towards establishing a stable regime for seabed jurisdiction- the role of the CLCS?Harald Brekke

Former member of CLCS, 1997 - 2012

Continental shelf limits

• Geneva Convention 1958: The continental shelf extends “..to where the depth of the superjacent water admits of the exploitation of the natural resources..”

• UNCLOS 1982: The limits of the continental shelf established according to the Convention “..shall be final and binding”

28.06.20162 Legal Order in the World's Oceans - COLP 2016

Tommy T. B. Koh, President of 3rd Conference

• “The Convention will promote the maintenance of international peace and security because it replaces a plethora of conflicting claims by coastal States with universally agreed limits on the territorial sea, on the contiguous zone, on the exclusive economic zone and on the continental shelf”

Introductory Material on the Convention and the Conference, pp xxvi.


Expert advice

“The Convention provides for the establishment of aCommission of experts to advise on the delineation ofthe outer edge of the continental margin, that is, thelimit of national jurisdiction over the continental shelf”


Introductory Material on the Convention and the Conference, pp xxvi.

Members of the CLCS(Annex II, Article 2, Paragraph 1)

"The Commission shall consist of 21 members who shall

be experts in the field of geology, geophysics or

hydrography, elected by States Parties to this Convention

from among their nationals, having due regard to the

need to ensure equitable geographical representation,

who shall serve in their personal capacities."


• The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf.

• The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

Mandate under the United NationsConvention on the Law of the Sea

Article 76, Paragraph 8


Article 76

Definition of the continental shelf


Paragraph 1

• Defines the continental shelf (i.e. the extent of jurisdiction)

in terms of

the outer edge of the continental margin (a physical entity).


Definition of the terms

• The Continental Shelf of a coastal State:

• “the natural prolongation of its land territory to the outer edge of the continental margin”.

• The Continental Margin:

• “the submerged prolongation of the land mass of the coastal State”


Giving scientific terms legal content

• Foot of the continental slope (a “baseline”)

• Outer edge of the continental margin

• The deep ocean floor

• Natural prolongation

• How to define Submarine ridges vs Submarine elevations

• Who was supposed to make these interpretations? States or the Commission?


CLCS Precedence

Legal Order in the World's Oceans - COLP 201611 28.06.2016

Final and binding limits

• The implications for jurisdictional rights put extra pressure on

the credibility of the scientific considerations made by the

CLCS.

• For States to accept the recommended limits as final and

binding would require that the recommendations of the CLCS

are considered to be consistent over time with regard to the

application of the scientific principles related to article 76.


Foot of the continental slope


100 200 300 4000

Baseline

Nautical mile( M )

Oceanic crustCrystalline continental crust

Foot of slope

60M

1 % of distanceto foot of slope

Determination of the outer edge

of the continental margin


Foot of the continental slope

• Article 76, paragraph 4(b):

• “In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in gradient at its base.”

• Article 76, paragraph 4(b) requires the identification of:

• Base of the continental slope

• Maximum change in gradient

• The need for evidence to the contrary

• The precedence of the CLCS is that FOS is defined by morphology, supported by geology if necessary

15 Legal Order in the World's Oceans - COLP 201628.06.2016

Outer edge of the continental margin


The fundamental boundary

• The outer edge of the continental margin is the boundary between the continental margin and the deep ocean floor (§76.3)

• The outer edge of the continental margin is generated from the envelope of the foot of the continental slope in accordance with paragraph 76.4 (a).

• The practice of the CLCS is to first recommend on the delineation of the outer edge of the continental margin. The delineation of the outer limit of the continental shelf follows.


100 200 300 4000

Baseline

Nautical mile( M )

Oceanic crustCrystalline continental crust

Foot of slope

60M

1 % of distanceto foot of slope

Determination of the outer edge

of the continental margin


The deep ocean floor


The deep ocean floor

The deep ocean floor in the sense of article 76 is the area seaward of the outer edge of the continental margin. However, the opposite also applies i.e. that the continental margin is the area landward of the deep ocean floor. This concept is reflected in paragraph 5.4.5 of the Guidelines.19

As a consequence of this, not only has the CLCS developed views and understandings related to continental margins, but also to the characteristics of “the deep ocean floor with its oceanic ridges.” The CLCS outlined its views on the characteristics of the deep ocean floor, particularly that of the Atlantic Ocean.

20 Legal Order in the World's Oceans - COLP 2016

Ref. CLCS recommendations for UK, Ascension Island,

para. 23

28.06.2016

Natural prolongation


Principles applied by CLCS

1. The “natural prolongation of [the] land territory” is based on the physical extent of the continental margin to its “outer edge” (article 76, paragraph 1) i.e. “the submerged prolongation of the land mass...” (article 76, paragraph3);

2. The outer edge of the continental margin in the sense of article 76, paragraph 3, is established by applying the provisions of article 76, paragraph 4, through measurements from the FOS;

Ref. CLCS recommendations for UK, Ascension Island, para. 22


Initial paragraph in CLCS recommendations

• The outer edge of the continental margin, established from the FOS of the region by applying the provisions of article 76, paragraph 4, of the Convention, extends beyond the 200 M limit of [coastal State]. Therefore, [coastal State] is entitled to delineate the outer limits of its continental shelf beyond its 200 M limit in this region (i.e. the test of appurtenance for the region is satisfied by [coastal State]);


ITLOS, Bangladesh-Myanmar

Case No 16, 14 March 2012

• 435. Furthermore, one of the principal objects and purposes of article 76 of the Convention is to define the precise outer limits of the continental shelf, beyond which lies the Area.

• The Tribunal therefore finds it difficult to accept that natural prolongation referred to in article 76, paragraph 1, constitutes a separate and independent criterion a coastal State must satisfy in order to be entitled to a continental shelf beyond 200 nm.




• 436.[……….The Tribunal takes note of the “test of appurtenance” applied by the Commission on the basis of article 76, paragraph 4, to determine the existence of entitlement beyond 200 nm. ….]




• 437. For these reasons, the Tribunal is of the view that the reference to natural prolongation in article 76, paragraph 1, of the Convention, should be understood in light of the subsequent provisions of the article defining the continental shelf and the continental margin. Entitlement to a continental shelf beyond 200 nm should thus be determined by reference to the outer edge of the continental margin, to be ascertained in accordance with article 76, paragraph 4. To interpret otherwise is warranted neither by the text of article 76 nor by its object and purpose.


Seafloor highsThree categories


Global Relief


Article 76 categories of seafloor highs

1. Oceanic ridges of the deep ocean floor -§3

2. Submarine ridges -§6

3. Submarine elevations that are naturalcomponents of the continental margin -§6


Maximum constraint criteria (76.6)

• Submarine ridges:

• 350 M from the baseline

• Submarine elevations that are natural components of the continental margin:

• 350 M from the baseline, or

• 100 M from the 2500 m isobath


CLCS approach

In cases where the outer edge of the continental margin extends beyond 350 M, the CLCS considers whether this is caused by

“submarine ridges” or

“submarine elevations that are natural components of the continental margin” in the sense of article 76, paragraph 6


CLCS practice

• Outer edge entirely inside 350 M:

• No comments on the nature of attached seafloor highs

• Parts of outer edge beyond 350 M:

• Comments on nature of seafloor highs in order to recommend or not recommend the application of the depth constraint in those areas



CLCS classification of

seafloor highs

1 - Submarine ridge (Art. 76, §6)

2 - Submarine elevation that is a natural component of the continental margin (Art. 76, §6)

3 - No morphological continuity at FOS level - oceanic ridge (Art. 76, §3), excluded

4 - Submarine elevation or submarine ridge (§6), but no decisison due to insufficiency of data available

5 - Submarine elevation or submarine ridge (§6), but no classification provided since feature is landward of 350 M from baseline

6 - Recommendations postponed or not available

Seafloor high Rus Fed Brazil Australia New Zeal FISU Norway Fr (FG/NC) UK (Asc) Maur/Seych Barbados Suriname Philippines Japan Denmark Iceland

Lomonosov Ridge 6

Mendeleev Rise 6

Vitoria-Trinidad Ridge 1

Sao Paolo Plateau 2

Three Kings Ridge 5 2

Lord Howe Rise 2 2

South Tasman Rise 2

East Tasman Plateau 5

Mcquarie Ridge 5

Naturaliste Plateau 2

Naturaliste Plateau Spur 3

Wallaby Plateau 2

Exmouth Plateau 2

Joey Rise 4

Kerguelen Plateau 2 2

Williams Ridge 4

Colville/Kermadec Ridges 2

Hikurangi Plateau 2

Wishbone Ridge 2

East Chatham Rise + Weta SM 2

Chatham Rise Terrace 2

Bollons Seamount 5

Challenger Plateau 2

South Menez Braz Spur 5

Vøring Plateau 2

Vøring Spur 1

Jan Mayen Micro-continent 2

Mohns Ridge 3

Démérara Plateau 2 2

Northern Lord Howe Rise 2

Mid-Atlantic Ridge 3

Mascarene Bank 2

Antilles Accretionary Wedge 2

Gallieni Ridge 4

Skiff Bank Spur 2

Benham Rise 5

Narra Spur 5

Molave Spur 5

Ogaswara Plateau Part 2

Ogaswara Ridge Part 1

Kyushu-Palau Ridge 6

Uyieda Ridge 3

Mogi Seamount 3

Southern Oki-Daito Ridge 3

Aegir Risdge 1

Reykjanes Ridge 4

Status

• Oceanic ridge (lack of prolongation) 6

• Submarine ridges 3

• Submarine elevations 22

• Undecided, lack of data 4

• Submarine ridge or elevation (inside 350 M) 8

• Not published 3

• TOTAL 46


Global Relief


Seafloor highs considered by the CLCS


Colour code as in table in slide 38

Distinction between submarine elevations and submarine ridges

The most significant morphological feature of the continental margin North of the Faroe Islands is the Ægir Ridge. Denmark notes that a “seafloor high that is a natural component needs to be geologically linked to the continental margin in its entirety to be classified as a submarine elevation. In contrast, submarine ridges are seafloor highs that are morphologically an integral part of the continental margin, but may be geologically different along parts or the entire length of the ridge from the landmass of the coastal State from which the margin extends.”


Ref. CLCS recommendations for Denmark, Faroe Islands, para. 34

Application of the definition

• Denmark therefore concludes that since the Ægir Ridge is continuous with the continental margin north of the Faroe Islands and falls within a common envelope of the foot of the continental slope, yet is an extinct seafloor spreading ridge that is geologically different from the landmass of the Faroe Islands, it is a submarine ridge in the meaning of article 76, paragraph 6, of the Convention.

• The Subcommission agrees with this view.


Ref. CLCS recommendations for Denmark, Faroe Islands, para. 34

Delimitation between States


States with opposite or adjacent coasts

• The actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts. (Annex II, para. 9)


Annex 1 of the Rules of Procedure

• Annex I

• Submissions in case of a dispute between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes


Annex 1, paragraph 5

• 5. (a) In cases where a land or maritime dispute exists, the Commission

shall not consider and qualify a submission made by any of the States

concerned in the dispute. However, the Commission may consider one or

more submissions in the areas under dispute with prior consent given by

all States that are parties to such a dispute.


Interface with other treaties


General disclaimer

• The Recommendations of the Commission are based on the scientific and technical data and other material provided by the coastal State in relation to the implementation of article 76. The Recommendations of the Commission only deal with issues related to article 76 and Annex II to the Convention and are without prejudice to matters relating to delimitation between States, or application of other parts of the Convention or any other treaties.


A case concerning the interpretation of article 121

• The Commission considered whether it shall take action on the part of the recommendation prepared by the Subcommission in relation to the Southern Kyushu-Palau Ridge Region (KPR) and decided not to do so. The Commission considers that it will not be in a position to take action to make recommendations on the Southern Kyushu-Palau Ridge Region (KPR) until such time as the matters referred to in the notes verbales have been resolved.


Summary recommendations for Japan, paragraph 20

Role of the CLCS

• The CLCS was set up as an advisory body regarding the technical issues involved in article 76.

• It was not intended to be a an arena for other parts of the Convention.


The performance of the CLCS


Measures to develop and preserve consistency in the delineation of the continental shelf

• Establishment of the CLCS itself

• Scientific and Technical Guidelines of the CLCS – issued in 1999

• The CLCS must be conscious that the recommendations, adopted either by consensus or voting, create precedence

• The CLCS must observe a practice consistent with the precedence set by the recommendations

• Publication of extensive summaries of the recommendations

• Secure continuity within the CLCS (Election procedure questioned!)


CLCS elections

• 1997 - All new 100%

• 2002 - 8 members replaced 38%




Recommendations by the CLCS

0

1

2

3

4

5

1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Number of recommendations issued


Recommendation record

• 1997-2002 Commission 0 Recom.



• 2012-(2017) Commission 6 Recom.

28.06.2016Legal Order in the World's Oceans - COLP 2016

51

Submissions / Dates 2001 2001 2002 2002 2003 2003 2004 2004 2005 2005 2006 2006 2007 2007 2008 2008 2009 2009 2010 2010 2011 2011 2012 2012 2013 2013 2014 2014 2015 2015 2016 2016 2017

Russian Federation

Brazil

Australia

Ireland 1, Porcupine

New Zealand

Joint FISU

Norway 1, Arctic and Atlantic

France 1, F Guinea N Caledonia

Mexico 1, Western enclave

Barbados

UK 1, Ascension

Indonesia 1, NW Sumatra

Japan

Joint MauSey

Myanmar

Suriname

Yemen

UK 2, Hatton - Rockall

Ireland 2, Hatton - Rockall

France 2, Kerguelen Antilles

Uruguay

Philippines 1, Benham Rise

Barbados ReSub,

Cook Islands

Fiji

Argentina 1, northern area

Gahna

Iceland 1, North and Reykjanes

Denmark 1, Faeroe Isl north

Russian Federation RevSub, Sea of Ohotsk

Pakistan

Norway 2, Bouvet Island

South Africa 1, Mainland

Joint FMPNGSI

Joint Malaysia and Vietnam

Joint France an SA

Kenya

Mauritius 2, Rodrigues

Brazil RevSub, Southern Region

Vietnam

Nigeria

Russian Federation RevSub, Arctic

Timelines for submissions considered by the CLSC(In sequence of the order submitted)


Waiting in queue

Subcommission

Plenary

Recommendation

Myanmar

Blocked by

neighbour

Election Election Election Election28.06.2016

Submissions / Dates 2001 2001 2002 2002 2003 2003 2004 2004 2005 2005 2006 2006 2007 2007 2008 2008 2009 2009 2010 2010 2011 2011 2012 2012 2013 2013 2014 2014 2015 2015 2016 2016 2017 2017 2018 2018 2019 2019 2020 2020 2021 2021 2022 2022 2023 2023 2024 2024 2025 2025 2026 2026 2027 2027 2028 2028 2029 2029 2030 2030 2031 2031 2032 2032 2033 2033 2034 2034 2035 2035

Russian Federation

Brazil

Australia

Ireland 1, Porcupine

New Zealand

Joint FISU

Norway 1, Arctic and Atlantic

France 1, F Guinea N Caledonia

Mexico 1, Western enclave

Barbados

UK 1, Ascension

Indonesia 1, NW Sumatra

Japan

Joint MauSey

Suriname

France 2, Kerguelen Antilles

Uruguay

Philippines 1, Benham Rise

Barbados ReSub,

Cook Islands

Argentina 1, northern area

Gahna

Iceland 1, North and Reykjanes

Denmark 1, Faeroe Isl north

Russian Federation RevSub, Sea of Ohotsk

Pakistan

Norway 2, Bouvet Island

South Africa 1, Mainland

Joint FMPNGSI

Joint France an SA

Kenya

Mauritius 2, Rodrigues

Brazil RevSub, Southern Region

Nigeria

Russian Federation RevSub, Arctic

Seychelles 2, Northern area

France 3, Reunion, Sait Paul and Amsterdam

Palau

Cote dIvoire

Sri Lanka

Portugal

UK 3, Falkland, S Georgia S Sandwich

Tonga

Spain 1, Galicia

India

Trinidad and Tobago

Namibia

Cuba

Mozambique

Maldives

Denmark 2, Faeroe Rockall Plateau

Bangladesh

Madagascar

Guyana

Mexico 2, eastern polygon

Tanzania

Gabon

Denmark 3, south Greenland

Joint Tuvalu, France, New Zealand

China 1, East China Sea

Kiribati

Republic of Korea

Nicaragua 1

Federated States of Micronesia

Denmark 4, NE Greenland

Angola

Canada 1, Atlantic

Bahamas

France 4, Saitn Pierre et Miquelon

Tonga 1

Somalia

Joint CVGG-BGMSSL

Denmark 5, N Greenland

Spain 2, Canary Islands

Myanmar

Yemen

UK 2, Hatton - Rockall

Ireland 2, Hatton - Rockall

Fiji

Joint Malaysia and Vietnam

Vietnam

Extrapolation


Waiting

Subcomm

Plenary

Recommnd

28.06.2016

Factors with impact on CLCS handling time

Not under own control:

• Size and complexity of submissions

• Coastal State’s input during Sub-commission stage

• Re-submissions (new and revised submissions)

• Blocking of submissions by neighbour states (Annex I)

• Continuity of CLCS expertise and experience

• Under own control:

• The efficient time allocated to CLCS work – in sessions and inter-sessionally

• Routines and organization of work developed by the CLCS

• Development and efficient application of precedence


Efficient time allocated to CLCS work


0 0 0 0 0

1

0 0 0 0

2 2

4

2

3

4

0

3

1

2

0

0.5

1

1.5

2

2.5

3

3.5

4

4.5

02468

1012141618202224262830323436384042444648505254565860

1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Plenary and SC weeks per year

Plenary Sessions Subcommission weeks Recommendations

CLCS contributions to a stable regime of generally accepted outer limits

• CLCS is an advisory body on the delineation of the Continental Shelf, not a boundary commission

• Set a precedence through the recommendations that is generally accepted

• A CLCS practice that is seen as consistent with the precedence (scientific & procedural)

• A steady pace of Recommendations

• Few cases of major re-submissions

• Application of Annex I should be restricted to its intention56 Legal Order in the World's Oceans - COLP 201628.06.2016

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