Judicial and arbitral proceedings and the outer limits of the continental shelf.

• Author: Noyes, John E.

This Article explores when international third-party dispute settlement forums may hear cases concerning the outer limits of a continental shelf beyond 200 nautical miles from baselines. The 1982 Convention on the Law of the Sea articulated determinate rules for establishing those limits and created an institution--the Commission on the Limits of the Continental Shelf--to make recommendations concerning them. Limits set by coastal states "on the basis of" such recommendations "shall be final and binding." Yet the Law of the Sea Convention's third-party dispute settlement system may also apply to outer limits questions concerning the Arctic Ocean and other oceans.

International courts and tribunals are likely to play only limited roles in reviewing a coastal state's compliance with the substantive and procedural requirements of the Law of the Sea Convention related to the outer limits of its continental shelf. Rules about jurisdiction and standing, and the need to accord appropriate deference to the Commission on the Limits of the Continental Shelf, will restrict the cases that may be pursued.

Although third-party tribunals might issue occasional advisory opinions or rulings in contentious interstate cases, helping to settle disputes or promote consistent and accurate application of the law, alternative mechanisms will often have to further these goals.

TABLE OF CONTENTS I. INTRODUCTION II. THIRD-PARTY DISPUTE SETTLEMENT AND THE LAW OF THE SEA A. The Third-Party Dispute Settlement System of the Law of the Sea Convention B. The Functions of Third-Party Dispute Settlement and the Rule of Law III. THE OUTER LIMITS OF THE CONTINENTAL SHELF BEYOND 200 NAUTICAL MILES FROM BASELINES AND THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF A. The Outer Limits of the Continental Shelf B. The Commission on the Limits of the Continental Shelf IV. THIRD-PARTY PROCEEDINGS CONCERNING THE OUTER LIMITS OF THE CONTINENTAL SHELF BEYOND 200 NAUTICAL MILES FROM BASELINES A. Contentious Cases Pursuant to Compulsory Procedures 1. Non-amenability of Certain Entities to Compulsory Procedures 2. Interstate Cases 3. Standing and the Invocation of State Responsibility in Interstate Cases 4. Judicial Interpretation of CLCS Findings and Scientific Data B. Contentious Cases Pursuant to Special Agreements C. Advisory Jurisdiction 1. Advisory Opinions in the International Court of Justice 2. Advisory Opinions in the Seabed Disputes Chamber 3. Advisory Opinions in the International Tribunal for the Law of the Sea Pursuant to International Agreements V. CONCLUSION I. INTRODUCTION

The 1982 United Nations Convention on the Law of the Sea (the Convention) (1) helps establish the rule of law for the oceans. The Convention includes a third-party dispute settlement system, authorizing international courts and tribunals to authoritatively interpret Convention norms in many issue areas. (2) This system may also further goals such as the peaceful settlement of disputes.

This Article explores instances in which international third-party dispute settlement forums may hear contentious cases or render advisory opinions concerning the outer limits of the continental shelf beyond 200 nautical miles from baselines. (3) The Law of the Sea Convention includes determinate rules for establishing those limits. (4) The Convention also created an institution specifically to address outer limits. (5) This technical body, the Commission on the Limits of the Continental Shelf (CLCS), makes recommendations concerning outer limits "in accordance with article 76" of the Convention (6); limits set by coastal states "on the basis of" those recommendations "shall be final and binding." (7) Yet the Convention's third-party dispute settlement system may also apply to outer limits questions concerning the Arctic Ocean and other oceans. This Article examines the challenges involved in subjecting outer limits disputes or advisory opinion requests to third-party review.

Part II of this Article introduces the third-party dispute settlement system of the Convention and highlights its various functions, including promotion of the rule of law. Part III then surveys the Convention's provisions on the outer limits of the continental shelf and the roles of the CLCS. These two Parts provide a framework for Part IV, which considers when international courts and tribunals may review a coastal state's compliance with or give advice about the substantive and procedural requirements of the Convention with respect to the outer limits of the continental shelf. International courts and tribunals will likely play limited roles with respect to this issue. Political considerations may restrict the submission of cases, and judges face restrictive rules about jurisdiction and standing. Although third-party tribunals may occasionally render advisory opinions or decide contentious interstate cases--thus helping to settle disputes or promote consistent and accurate application of the law related to outer limits--alternative mechanisms will often have to further these goals.

2. THIRD-PARTY DISPUTE SETTLEMENT AND THE LAW OF THE SEA

   Negotiators at the Third United Nations Conference on the Law of the Sea (UNCLOS III) believed that compulsory third-party dispute settlement was an essential part of the Law of the Sea Convention. The Convention contains elaborate provisions for third-party dispute settlement, which are summarized in Part II.A. Part II.B then discusses several functions of courts and tribunals operating under these provisions, emphasizing the notion of rule of law promotion. (8)

   1. The Third-Party Dispute Settlement System of the Law of the Sea Convention

      The negotiations at UNCLOS III led to the establishment of a complex third-party dispute settlement system, which is contained in Part XI, Part XV, and several Annexes of the Law of the Sea Convention. (9) The provisions applicable to deep seabed mining disputes differ significantly from those applicable to non-seabed-mining disputes. (10) With respect to many non-seabed-mining disputes, Part XV of the Convention authorizes comprehensive compulsory procedures entailing binding decisions. (11) These procedures apply when informal mechanisms do not lead to the settlement of disputes. (12)

      The third-party dispute settlement system articulated in Part XV is flexible. States may choose among: the International Tribunal for the Law of the Sea (ITLOS) (a court created by the Convention); the International Court of Justice (ICJ); Annex VII arbitration; or, for disputes relating to fisheries, the marine environment, marine scientific research, or navigation, Annex VIII special arbitration before technical experts. (13) Each such court and tribunal has jurisdiction "over any dispute concerning the interpretation or application of th[e] [Law of the Sea] Convention which is submitted to it in accordance with this Part" or "over any dispute concerning the interpretation or application of an international agreement related to the purposes of th[e] Convention, which is submitted to it in accordance with the agreement." (14) Furthermore, states are free to agree on other formal or informal dispute settlement mechanisms. (15) Despite this flexibility in choice of forum, the Convention's third-party dispute settlement provisions remain compulsory and can lead to binding decisions, with arbitration serving as the default mechanism in non-seabed-mining cases when all parties to a dispute do not agree on an same alternative forum. (16)

      Most contentious non-seabed-mining third-party cases brought under Part XV will be interstate cases. The European Community, which has accepted the Convention, may be a party to cases in the International Tribunal for the Law of the Sea, Annex VII arbitral tribunals, or Annex VIII special arbitral tribunals, but not to cases in the International Court of Justice. (17) The Convention restricts the access of other international organizations and individuals to third-party forums, (18) a point developed more fully in Part IV.

      The Law of the Sea Convention restricts the scope of compulsory procedures entailing binding decisions by providing for several limitations and exceptions. These limitations relate to certain disputes concerning marine scientific research and exclusive economic zone (EEZ) fishing disputes. (19) States Parties to the Convention may also file declarations opting out of the Convention's third-party dispute settlement requirements with respect to a few matters. These optional exceptions apply to maritime boundary delimitations, historic bays, military activities, certain EEZ law enforcement activities, and instances when the United Nations Security Council is exercising its assigned functions. (20) None of these limitations or optional exceptions applies directly to disputes concerning the outer limits of the continental shelf. (21)

      With respect to contentious cases relating to seabed mining in "the Area," i.e., the seabed and subsoil beyond the limits of national jurisdiction, (22) the Seabed Disputes Chamber of the ITLOS is the primary third-party dispute settlement forum. (23) The Chamber, composed of eleven of the twenty-one members of the ITLOS, has jurisdiction with respect to "activities in the Area" (24) in cases involving certain disputes between: States Parties to the Law of the Sea Convention; a State Party and the International Seabed Authority; parties to a mining contract, which may include natural or juridical persons; and the Authority and prospective contractors, which may include natural or juridical persons. (25)

      Some of the international courts and tribunals that can hear contentious law of the sea cases may also render advisory opinions. The ICJ may do so, with respect to any legal question, at the request of the U.N. General Assembly or the U.N. Security Council. (26) Parties to an international agreement related to the purposes of the Law of the Sea Convention may authorize the...