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

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

2 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

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

4 Expert advice The Convention provides for the establishment of a Commission of experts to advise on the delineation of the outer edge of the continental margin, that is, the limit of national jurisdiction over the continental shelf Introductory Material on the Convention and the Conference, pp xxvi

5 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."

6 Mandate under the United Nations Convention on the Law of the Sea Article 76, Paragraph 8 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

7 Article 76 Definition of the continental shelf

8 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)

9 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

10 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?

11 CLCS Precedence

12 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

13 Foot of the continental slope

14 Determination of the outer edge of the continental margin Baseline Foot of slope 60M 1 % of distance to foot of slope Crystalline continental crust Oceanic crust Nautical mile( M )

15 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

16 Outer edge of the continental margin

17 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

18 Determination of the outer edge of the continental margin Baseline Foot of slope 60M 1 % of distance to foot of slope Crystalline continental crust Oceanic crust Nautical mile( M )

19 The deep ocean floor

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

21 Natural prolongation

22 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

23 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]);

24 ITLOS, Bangladesh-Myanmar Case No 16, 14 March 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

25 ITLOS, Bangladesh-Myanmar Case No 16, 14 March [.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..]

26 ITLOS, Bangladesh-Myanmar Case No 16, 14 March 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

27 Seafloor highs Three categories

28 Global Relief

29 Article 76 categories of seafloor highs 1. Oceanic ridges of the deep ocean floor Submarine ridges Submarine elevations that are natural components of the continental margin

30 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

31 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

32 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

33 33 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 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 CLCS classification of seafloor highs

34 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

35 Global Relief

36 Seafloor highs considered by the CLCS Colour code as in table in slide

37 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

38 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

39 Delimitation between States

40 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)

41 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

42 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

43 Interface with other treaties

44 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

45 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

46 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

47 The performance of the CLCS

48 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!)

49 CLCS elections All new 100% members replaced 38% members replaced 29% members replaced 62%

50 Recommendations by the CLCS 5 Number of recommendations issued

51 Recommendation record Commission Commission Commission 2012-(2017) Commission 0 Recom. 3 Recom. 15 Recom. 6 Recom Legal Order in the World's Oceans - COLP 2016

52 Timelines for submissions considered by the CLSC (In sequence of the order submitted) Submissions / Dates 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 52 Election Election Election Election Waiting in queue Subcommission Plenary Recommendation Myanmar Blocked by neighbour

53 Submissions / Dates 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

54 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

55 Efficient time allocated to CLCS work Plenary and SC weeks per year Plenary Sessions Subcommission weeks Recommendations

56 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 intention