heterogeneous justifications for the exercise of jurisdiction

The first delimitation dispute involving overlapping outer continental shelf entitlements referred to an international court and in which the forum exercised jurisdiction to establish a delimitation line in the area beyond two hundred nautical miles was Bay of Bengal (Bangladesh v Myanmar). For these reasons, it appears logical to examine the analysis of ITLOS prior to examining the reasoning of other courts and tribunals. The particular case of the Bay of Bengal is unique due to the large amounts of sediment in the bay (a circumstance that, during the third Conference on the Law of the Sea, resulted in a particular rule for establishing the outer edge of the continental margin).Footnote ³⁴ ITLOS noted “uncontested scientific evidence”Footnote ³⁵ of both parties’ entitlement to the area in question and decided to exercise jurisdiction notwithstanding the CLCS not having considered both parties’ claims of entitlement. Yet ITLOS did stress that it “would have been hesitant to proceed with the delimitation of the area beyond 200 [nautical miles]” had it concluded that there was significant uncertainty about the existence of a continental margin in the area.Footnote ³⁶ Accordingly, it alluded to an understanding that the delimitation of the outer continental shelf may in certain circumstances require the presence of CLCS recommendations notwithstanding the doctrine of a single continental shelf. This understanding arises since it would appear from the statement above that there may be circumstances that would require abstention from the exercise of jurisdiction or, possibly, a finding of inadmissibility. While it may appear difficult — judging from the terms employed — to accept the proposition that ITLOS had inadmissibility in mind, it can be difficult to explain the difference between jurisdiction and admissibility. This distinction can often be seen as a puzzle of procedural law. In essence, it means that, notwithstanding jurisdiction being established, a court or tribunal must refuse to hear a case if the application is not admissible. Yuval Shany has provided a functional definition of the difference between these terms according to which “jurisdictional rules define the legal powers of courts and … admissibility rules define their ability to refrain from exercising legal power.”Footnote ³⁷ A finding of inadmissibility will result in a dismissal of the claim on the merits but will not prevent a litigant from initiating new proceedings once the circumstances resulting in inadmissibility have been removed. It would not appear futile to seek a definitive answer to the question whether the lack of exercise of jurisdiction results from inadmissibility of the plea or whether it results from an international court’s discretion to refrain from exercising jurisdiction. To do otherwise could be a hazardous undertaking.Footnote ³⁸ Yet ITLOS did allude to the matter being one of the exercise of jurisdiction rather than admissibility.Footnote ³⁹

The question whether courts and tribunals may exercise jurisdiction in the absence of recommendations from the CLCS, and, in the affirmative, under what circumstances, was also addressed in Territorial and Maritime Dispute (Nicaragua v Colombia). Footnote ⁴⁰ A significant difference from Bay of Bengal (Bangladesh v Myanmar) is that the applicant in Maritime Dispute (Nicaragua v Colombia) had not transmitted a fully fledged submission to the CLCS but only preliminary information indicative of the shelf’s outer limits.Footnote ⁴¹ Without explicitly mentioning whether the lack of full submissions triggered its decision, the ICJ limited itself to observing that Nicaragua “has not established that it has a continental margin that extends far enough to overlap with Colombia’s 200-nautical-mile entitlement to the continental shelf.”Footnote ⁴² Accordingly, the ICJ did not proceed further with the delimitation operation. Immediately prior to making that determination, the ICJ referred to the obiter dictum from the Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea. Footnote ⁴³ Concerns were voiced with respect to that reference on the basis that it could be inferred therefrom that not only a full submission but also recommendations by the CLCS would be required for admissibility purposes. Judge ad hoc Thomas Mensah expressed the concern that this sequence “might be interpreted to suggest that a court or tribunal should, in every case, automatically rule that it is not able to decide on a dispute relating to the delimitation of the continental shelf beyond 200 [nautical miles] whenever one of the Parties to the dispute has not followed …. the procedure set out in article 76 of UNCLOS.”Footnote ⁴⁴ The same concern appeared also in other opinions that stated that the rejection of Nicaragua’s claim “suggest[s] that the Court will not delimit [the] continental shelf beyond 200 [nautical miles] of the coast of any State party to [UNCLOS] before the outer limits of such continental shelf have been established by that State in accordance with Article 76 of UNCLOS.”Footnote ⁴⁵ A curious fact is that the above-mentioned individual observations of the members of the ICJ in November 2012 were made despite the ruling of ITLOS in Bay of Bengal (Bangladesh v Myanmar) only eight months earlier.

The question whether the refusal of the ICJ to engage further with the delimitation operation in Maritime Dispute (Nicaragua v Colombia) was due to the lack of recommendations from the CLCS or merely due to the lack of a submission being transmitted to the CLCS under Article 76(8) of UNCLOS was addressed in the judgment on preliminary objections in Nicaraguan Coast (Nicaragua v Colombia). The ICJ observed that the sole reason for which the ICJ could not uphold Nicaragua’s claim in 2012 was because Nicaragua had not at that time submitted its proposed outer limits to the CLCS.Footnote ⁴⁶ According to the ICJ, its finding in Maritime Dispute (Nicaragua v Colombia), according to which the applicant had not established its entitlement to the outer continental shelf, implied that “Nicaragua had to submit such information as a prerequisite for the delimitation of the continental shelf beyond 200 [nautical miles] by the Court.”Footnote ⁴⁷ The ICJ was resolute and unequivocal on the question whether CLCS recommendations were required to delimit overlapping claims. According to the ICJ, the making of recommendations by the CLCS “is not a prerequisite that needs to be satisfied by a State party to UNCLOS before it can ask the Court to settle a dispute with another State over such a delimitation.”Footnote ⁴⁸ It should be recalled that, subsequent to the reading of the judgment in Maritime Dispute (Nicaragua v Colombia) and prior to the application in Nicaraguan Coast (Nicaragua v Colombia) being lodged with the ICJ, the applicant had transmitted a full submission to the CLCS. Accordingly, the ICJ concluded that “the preliminary objection to the admissibility of Nicaragua’s First Request must be rejected.”Footnote ⁴⁹ Consequently, where a submission to the CLCS is made in accordance with Article 76(8) of UNCLOS, a submission to the ICJ to delimit an overlap of outer continental shelf areas is, it appears, admissible notwithstanding the absence of recommendations from the CLCS.Footnote ⁵⁰ Accordingly, “the condition imposed by [the ICJ] in its 2012 Judgment in order for it to be able to examine the claim of Nicaragua … has been fulfilled in the present case.”Footnote ⁵¹ Upon this basis, the ICJ concluded that “the delimitation of the continental shelf beyond 200 [nautical miles] can be undertaken independently of a recommendation from the CLCS [and, therefore,] the latter is not a prerequisite that needs to be satisfied by a State party to UNCLOS before it can ask the Court to settle a dispute with another State over such a delimitation.”Footnote ⁵²

There are evident deviations in this ruling from the understanding of ITLOS as expressed in Bay of Bengal (Bangladesh v Myanmar). First, in Nicaraguan Coast (Nicaragua v Colombia), the ICJ appeared to approach the question systemically, whereas, in Bay of Bengal, ITLOS emphasized that the exercise of jurisdiction calls for a casuistic determination. According to ITLOS, the “determination of whether an international court or tribunal should exercise its jurisdiction depends on the procedural and substantive circumstances of each case.”Footnote ⁵³ Accordingly, ITLOS considered that the question whether to exercise jurisdiction is not necessarily contingent upon the transmission of submissions to the CLCS, whereas the ICJ understood this matter differently in Nicaraguan Coast. Second, while the ICJ viewed the matter as one of admissibility, ITLOS was not explicit on this particular question, leaving aside whether any refusal to exercise jurisdiction would result from its discretionary powers to decide accordingly or whether it would be a matter of admissibility.

While it is apparent that ITLOS and the ICJ have embraced different understandings, yet another deviation is apparent in the award of the arbitral tribunal in Bay of Bengal (Bangladesh v India). In rather bold terms, the arbitral tribunal in that case highlighted that there is only a single continental shelf and only the coastal configuration is relevant for the purposes of delimiting overlapping entitlements, including in areas beyond the two hundred nautical mile distance line. Consequently, according to the arbitral tribunal, “[i]n keeping with its view that there is a single continental shelf … this Tribunal sees no basis for distinguishing between projections within 200 [nautical miles] and those beyond that point.”Footnote ⁵⁴ From this basis, it was concluded that the “coast is relevant, irrespective of whether that overlap occurs within 200 [nautical miles] of both coasts, beyond 200 [nautical miles] of both coasts, or within 200 [nautical miles] of one and beyond 200 [nautical miles] of the other.”Footnote ⁵⁵ The reasoning of the arbitral tribunal relied on coastal projections, notwithstanding the fact that coastal projections as such do not determine whether coastal states have entitlements to outer continental shelf areas.Footnote ⁵⁶ Further, the arbitral tribunal observed the parties’ agreement that both states have entitlements to outer continental shelf areasFootnote ⁵⁷ and, on that basis, relied on ITLOS’s finding in Bay of Bengal (Bangladesh v Myanmar), “which ruled that the delimitation of the continental shelf beyond 200 [nautical miles] through judicial settlement was in conformity with article 76 of [UNCLOS].”Footnote ⁵⁸ Thus, the arbitral tribunal contented itself with assimilating the area beyond the two hundred nautical mile distance line with the area within that distance.

A similar approach is also reflected in the award of the arbitral tribunal in Barbados v Trinidad and Tobago, in which the arbitral tribunal refused to accept the argument of Barbados that the tribunal should refrain from exercising jurisdiction with respect to entitlements beyond the 200 nautical mile distance line. According to the arbitral tribunal, the area beyond 200 nautical miles from the baselines “either forms part of, or is sufficiently related to, the dispute submitted by Barbados [and] in any event there is in law only one single ‘continental shelf.’”Footnote ⁵⁹ Yet this understanding ignores an element of importance. It is no coincidence that the entire delimitation operation within two hundred nautical miles “boils down to coastal geography.”Footnote ⁶⁰ The underlying reason for which the coastal configuration has overwhelming importance for the entire delimitation operation within two hundred nautical miles is that “it seems logical and appropriate to treat as relevant the coasts of the Parties which generate ‘the complete course’ of the provisional equidistance line.”Footnote ⁶¹ It is not disputed that “[b]eyond 200 [nautical miles] from the coasts of two adjacent States, on the other hand, any area of overlapping entitlement is not determined by the configuration of the coasts of the two States, but rather by application of the geomorphological and geological criteria set out in Article 76 of UNCLOS.”Footnote ⁶²

A similar understanding to those appearing in Bay of Bengal (Bangladesh v India) and Barbados v Trinidad and Tobago appears in the judgment of the Special Chamber in Atlantic Ocean (Ghana v Côte d’Ivoire). Footnote ⁶³ According to the Special Chamber, “the fact that Côte d’Ivoire has made its submission to the CLCS but that the latter has not yet made its recommendations in respect of Côte d’Ivoire does not call into question the admissibility of the submission on the delimitation of the continental shelf.”Footnote ⁶⁴ The Special Chamber observed to this effect “that there is in law only a single continental shelf rather than an inner continental shelf and a separate extended or outer continental shelf,”Footnote ⁶⁵ prior to further examining whether the submission to delimit the outer continental shelf area was admissible. In this respect, the admissibility matter was looked at through the lens of whether the exercise of jurisdiction would interfere with the work of the CLCS, to which the Special Chamber responded in the negative, relying on the differing scopes of Article 76 and Article 83 of UNCLOS respectively.Footnote ⁶⁶

Finally, in the judgment on preliminary objections in Indian Ocean (Somalia v Kenya), both states had made submissions pursuant to Article 76(8) of UNCLOS, but the CLCS had not yet made recommendations. The respondent argued that it was necessary to have established the seaward extent of entitlement prior to establishing a delimitation line, failing which it would, inter alia, not be possible to determine the relevant area for the purposes of the delimitation methodology.Footnote ⁶⁷ Rather than reiterating that the roles of the CLCS, on the one hand, and that of courts and tribunals, on the other hand, are different but complementary, the ICJ observed that “[a] lack of certainty regarding the outer limits of the continental shelf, and thus the precise location of the endpoint of a given boundary in the area beyond 200 [nautical miles], does not … necessarily prevent … the Court from undertaking the delimitation of the boundary in appropriate circumstances before the CLCS has made its recommendations.”Footnote ⁶⁸ Accordingly, the lack of CLCS recommendations does not “necessarily prevent” the ICJ from establishing a delimitation line in claimed outer continental shelf areas “in appropriate circumstances.” It would therefore appear that the transmission of a submission to the CLCS under Article 76 of UNCLOS does not necessarily make admissible a submission to a court or tribunal to delimit claimed outer continental shelf overlaps. Yet, this statement appears to stand at odds with the finding in Nicaraguan Coast (Nicaragua v Columbia) in which the ICJ clarified that the reason for which the applicant in Maritime Dispute (Nicaragua v Colombia) had not established entitlement to the claimed outer continental shelf was its failure to have transmitted a submission under Article 76(8) to the CLCS.

judicial discretion or inadmissibility?

Consistent with well-recognized judicial principles, once the jurisdictional matter is settled, courts and tribunals do not have unfettered discretion to decide whether to exercise or refrain from exercising jurisdiction.Footnote ⁶⁹ This arises because an international court or tribunal, exercising its competence, is obligated to “exercise that jurisdiction to its full extent.”Footnote ⁷⁰ The forum is compelled to “decide the whole of the petitum entrusted to it.”Footnote ⁷¹ For a court or tribunal to “discharge itself from carrying out that primary obligation must be considered as highly exceptional and a step to be taken only when the most cogent considerations of judicial propriety so require.”Footnote ⁷² This is because a refusal to exercise jurisdiction “would normally be a renunciation of the very function of the Court,”Footnote ⁷³ which is also the reason for which these cases are “highly exceptional.”Footnote ⁷⁴ In any event, these considerations fall within the “inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore.”Footnote ⁷⁵ Accordingly, notwithstanding a finding that a court or tribunal has jurisdiction to entertain a submission, it must “decline” to exercise jurisdiction where the very exercise of such jurisdiction would be contrary to the judicial functions inherent in an international court or tribunal.Footnote ⁷⁶

In Free Zones of Upper Savoy and the District of Gex, the Permanent Court of International Justice (PCIJ) listed three different categories of situations that would lead it to decline to exercise jurisdiction. First, it cannot “as a general rule be compelled to choose between constructions [of a treaty] determined beforehand one of which may correspond to the opinion at which it may arrive.”Footnote ⁷⁷ Second, it would be “incompatible with [its] Statute, and with its position as a Court of Justice to give a judgment which would be dependent for its validity on the subsequent approval” of the disputing parties.Footnote ⁷⁸ Third, there may also be questions that are “unsuitable to the role of a Court of Justice.”Footnote ⁷⁹ The relevant dispute in that case arose from questions involving the establishment of tariff exemptions. According to the PCIJ, the “interplay of economic interests [was] outside the sphere in which a Court of Justice, concerned with the application of rules of law, can help in the solution of disputes between two States.”Footnote ⁸⁰ It would appear difficult for the concept of “appropriate circumstances,” put forward in the judgment on preliminary objections in Indian Ocean (Somalia v Kenya), to be included within any of the above-mentioned categories. Rather, as will be explained below, the concept in question should be considered to relate to admissibility.

As mentioned earlier, in Nicaraguan Coast (Nicaragua v Colombia), the ICJ established in unequivocal terms that the reason for which it could not entertain the submission of the applicant in Maritime Dispute (Nicaragua v Colombia), by which the ICJ was requested to delimit the entire overlapping areas of the continental shelf, including those parts extending beyond the two hundred nautical mile distance line from the Nicaraguan mainland coast, was that Nicaragua had not fulfilled the obligation to transmit a submission to the CLCS under the relevant provisions of UNCLOS Article 76 and Annex II. Yet the plea concerning the delimitation of the outer continental shelf area was admissible in Nicaraguan Coast (Nicaragua v Colombia), as the applicant had fulfilled the procedural obligation in Article 76 of UNCLOS prior to initiating the latter proceedings.Footnote ⁸¹ It appears from its particular use of terminology that the ICJ was resolute on the question of the admissibility of such claims. Its position was not a result that derived directly from the factual setting of the particular dispute. Consequently, where a forum is vested with jurisdiction to settle a dispute and the submissions of the parties are admissible, it would follow that the forum in question is compelled to exercise its jurisdiction.

Yet the statement of the ICJ in Indian Ocean (Somalia v Kenya) that the absence of recommendations from the CLCS does not “necessarily prevent” a forum from exercising its jurisdiction to delimit the area beyond two hundred nautical miles does not fit well with this narrative.Footnote ⁸² Quite the contrary. This is because, whereas the above-mentioned statements are not incompatible, they are nevertheless inconsistent. As mentioned earlier, immediately upon making this observation in Indian Ocean, the ICJ introduced the caveat that this judicial rule applies “in appropriate circumstances.”Footnote ⁸³ However, the respondent did not challenge the admissibility of the relevant part of the applicant’s application on the grounds that the CLCS had not made its recommendations. The reasons for this would appear obvious, as the ICJ only eleven months earlier in its judgment on preliminary objections in Nicaraguan Coast (Nicaragua v Colombia) had stated that the lack of recommendations from the CLCS does not imply that a submission to delimit outer continental shelf overlaps becomes inadmissible.

It may be worth recalling that objections to admissibility “take the form of an assertion that, even if the Court has jurisdiction and the facts stated by the applicant State are assumed to be correct, nonetheless there are reasons why the Court should not proceed to an examination of the merits.”Footnote ⁸⁴ Reasons for determining that a plea is admissible or inadmissible, as the case may be, are not necessarily limited to procedural concerns but may also be closely related to the merits. Judge Gerald Fitzgerald observed on this issue that “there are also different categories of preliminary objections of a non-jurisdictional character, and … the category of questions of receivability is itself sub-divisible” into inadmissibility for procedural purposes and for purposes “closely connected with the merits.”Footnote ⁸⁵

There can be no doubt that the conclusion regarding admissibility of the above-mentioned final submission of the applicant in Nicaraguan Coast (Nicaragua v Colombia) was based on procedural considerations. This is necessarily implied in the conclusion that the plea for delimiting the claimed overlaps was admissible based only on the fact that submissions had been made to the CLCS, whether or not the CLCS had made recommendations with respect to the relevant submissions and therefore in the absence of opposable findings vis-à-vis the breadth of the outer continental shelf entitlements.

Assuming accordingly that any plea to delimit claimed outer continental shelf entitlements is admissible provided only that the coastal states involved have fulfilled the procedural obligation in Article 76(8) of UNCLOS implies necessarily that the competent court or tribunal is, in principle, obligated to exercise its jurisdiction regardless of whether the CLCS has or has not made recommendations. Exceptional circumstances, whereby courts and tribunals, consistent with well-established judicial principles, may decline to exercise jurisdiction, would not extend to so-called “appropriate circumstances,” to rely on the formula expressed by the ICJ in the judgment on preliminary objections in Indian Ocean (Somalia v Kenya). This arises clearly from the judgment in Nicaraguan Coast (Nicaragua v Colombia). The only material difference in Nicaraguan Coast, in so far as concerns delimitation of the continental shelf, compared to Maritime Dispute (Nicaragua v Colombia), it is recalled, is that the procedural obligation in Article 76(8) had been completed prior to instigating the judicial proceedings in Nicaraguan Coast (Nicaragua v Colombia). In the latter case, the ICJ confirmed that it “did not settle the question of delimitation in 2012 because it was not, at that time, in a position to do so.”Footnote ⁸⁶ A fortiori, the transmission of a full submission to the CLCS by the applicant prior to the application in Nicaraguan Coast (Nicaragua v Colombia) being referred to the ICJ necessarily implied that the ICJ was in a position to delimit the claimed overlap in Nicaraguan Coast. The same rationale must necessarily be transposed to the reading of the judgment in Indian Ocean (Somalia v Kenya).

It has been shown that the admissibility finding in Nicaraguan Coast (Nicaragua v Colombia) related to procedural considerations rather than being connected to the merits. Further, it has also been determined that the finding in Indian Ocean (Somalia v Kenya), according to which courts and tribunals may proceed with the “delimitation of the boundary in appropriate circumstances before the CLCS has made its recommendations,”Footnote ⁸⁷ cannot be seen to fall within the category of exceptional circumstances allowing courts and tribunals to decline to exercise jurisdiction contrary to the general obligation to exercise “jurisdiction to its full extent.”Footnote ⁸⁸ It remains to be determined how to conceive the above-mentioned finding in Indian Ocean (Somalia v Kenya). Two propositions appear possible. One must be disregarded, while the other is not implausible (but on which it is not possible to draw firm conclusions due to the apparent ambiguity of the language employed by the ICJ).

First, in the judgment on the merits in Indian Ocean (Somalia v Kenya), the ICJ “emphasize[d] that the lack of delineation of the outer limit of the continental shelf is not, in and of itself, an impediment to its delimitation between two States with adjacent coasts.”Footnote ⁸⁹ The argument could be put forward that “appropriate circumstances” may be understood to relate to situations where the coasts are not adjacent but opposite. However, there are two considerations that make this appear unlikely. On the one hand, in Nicaraguan Coast (Nicaragua v Colombia), where the admissibility of the submission — notwithstanding the lack of recommendations from the CLCS — was established, the coasts were opposite. On the other hand, the law of delimitation stresses that the same “delimitation methodology”Footnote ⁹⁰ applies equally to situations where the coasts are adjacent and where they are opposite.Footnote ⁹¹ Accordingly, it would be incautious to read strong implications into the above-mentioned reference to adjacency vis-à-vis the undertaking of a delimitation in the absence of recommendations from the CLCS.

Second, it need not be excluded that what the ICJ had in mind, when observing that it need not — in appropriate circumstances — decline to delimit claimed outer continental shelf overlaps in the absence of recommendations from the CLCS, were admissibility concerns that “are closely connected with the merits”Footnote ⁹² — in contrast to those arising from a procedural perspective. For example, notwithstanding whether the relevant states have fulfilled the procedural obligation in Article 76(8), a plea to delimit the claimed outer continental shelf overlap may result in inadmissibility where there are doubts whether a claimed outer continental shelf entitlement can be substantiated under Article 76(8). It is obvious that such inadmissibility would not arise from procedural grounds but would exclusively be due to concerns closely related to the merits. On this issue, it has been observed that “[s]ubmissions by States to the CLCS are unilateral assertions made with a view towards maximizing the area of continental shelf that the State can claim.”Footnote ⁹³

From this background, it would appear reasonable to assert that a finding — although in general terms — on the admissibility of a plea being exclusively contingent upon the fulfilment of the procedural rule in Article 76(8) does not foreclose that courts and tribunals could address admissibility concerns in outer continental shelf disputes where the CLCS has not made relevant recommendations. It must be emphasized that the ICJ did not provide for this possibility in explicit terms. Yet it is difficult to perceive any other means whereby the observations of the ICJ in Indian Ocean (Somalia v Kenya) can consistently, if only reluctantly, be accommodated within the previous case law of the ICJ. Accordingly, the proposition can be put forward that courts and tribunals will not necessarily determine that a submission to delimit claimed outer continental shelf overlaps is admissible notwithstanding the fulfilment of the procedural obligation of Article 76(8) of UNCLOS.

In sum, what the ICJ may have had in mind in Indian Ocean (Somalia v Kenya) in determining that the delimitation of claimed outer continental shelf overlaps may be entertained in “appropriate circumstances” was a recognition that a submission to a court or tribunal to delimit outer continental shelf areas may be inadmissible, depending on the factual matrix,Footnote ⁹⁴ notwithstanding the fulfillment of the procedural obligation in Article 76(8) of UNCLOS. However, this suggestion does not fit well with Nicaraguan Coast (Nicaragua v Colombia), where the ICJ took a categorical position concerning the question whether a plea to delimit outer continental shelf areas in the absence of recommendations from the CLCS is admissible. Accordingly, the suggestion can be accepted only with caution, unless the proposition is accepted that the admissibility finding in Nicaraguan Coast was only related to procedural considerations, whereas the qualification by the ICJ in Indian Ocean (Somalia v Kenya) regarding the exercise of jurisdiction in the absence of recommendations from the CLCS in appropriate circumstances reflects possible admissibility concerns closely related to the merits. Accordingly, it remains to be seen under what circumstances, and according to what reasoning, a court or tribunal would consider it appropriate to decline to exercise jurisdiction even where the disputing parties have fulfilled their obligations under Article 76(8) of UNCLOS.

courts’ and tribunals’ determinations of entitlement

While courts and tribunals have taken the view that the lack of recommendations from the CLCS does not constitute an impediment to delimiting claimed outer continental shelf overlaps, it is apparent that such submissions are, in the majority of cases, received with a certain amount of unease. This appears, inter alia, from the fact that judgments and awards in the above-mentioned disputes do not include outer continental shelf areas within the relevant area for purposes of delimitation,Footnote ⁹⁶ notwithstanding the establishment of a delimitation line in such areas. It is understandable that courts and tribunals are reluctant to include outer continental shelf areas within the relevant delimitation areas — as courts and tribunals shall “delimit the continental shelf beyond 200 [nautical miles] only if such a continental shelf exists.”Footnote ⁹⁷ Yet, omitting these areas from the relevant area is inconsistent with the law on maritime delimitation, as the identification of the relevant area is a “legal concept [which] has to be taken into account as part of the methodology of maritime delimitation.”Footnote ⁹⁸ Accordingly, courts and tribunals are faced with the following tension: on the one hand, the inclusion of outer continental shelf overlaps within the relevant area for the purpose of the delimitation methodology may be considered an impediment to the intended work of the CLCS; on the other hand, omitting the disputed areas beyond two hundred nautical miles would be at odds with the principles underlying the delimitation methodology.

One way of avoiding the difficult discussions that necessarily follow from these tensions is to follow the approach of the arbitral tribunal in Bay of Bengal (Bangladesh v India), where the tribunal sought to establish that, notwithstanding the different rules applicable to determining entitlement, only coastal projections matter for the purpose of delimitation.Footnote ⁹⁹ Yet, as observed by Judge Hanqin Xue, such reasoning pays lip service to the fact that “[w]ith the radial projection methodology, it is difficult to proceed to identifying the relevant coasts and the relevant area that includes the potential overlapping entitlements in the continental shelf beyond 200 [nautical miles], as its outer limits are not yet determined.”Footnote ¹⁰⁰

This is not different from what was observed almost thirty years ago in St Pierre & Miquelon (Canada v France) — namely, that a court or tribunal cannot “reach a decision by assuming hypothetically the eventuality that such rights will in fact exist.”Footnote ¹⁰¹ As has been observed by the incumbent president of the ICJ, the inclusion of claimed outer continental shelf areas within the relevant area appears to ignore the observation that “[s]ubmissions by States to the CLCS are unilateral assertions made with a view towards maximizing the area of continental shelf that the State can claim. It cannot be assumed that [the CLCS] will adopt any State’s submission.”Footnote ¹⁰² Assuming entitlement may undermine the foundations that underlie any delimitation — that is, that the disputing parties have entitlements to the area in question and that their entitlements overlap. The question is how to determine entitlements in the absence of recommendations from the CLCS.

In Bay of Bengal (Bangladesh v Myanmar), ITLOS referred to uncontested scientific evidence of substantial layers of sedimentary rocks “cover[ing] practically the entire floor of the Bay of Bengal,”Footnote ¹⁰³ from which it concluded that “both Bangladesh and Myanmar have entitlements to a continental shelf extending beyond 200 [nautical miles].”Footnote ¹⁰⁴ Reluctance would have been expressed, however, with respect to the exercise of jurisdiction if the conclusion had been “that there was significant uncertainty as to the existence of a continental margin in the area in question.”Footnote ¹⁰⁵ However, as mentioned earlier, ITLOS did not clarify whether such considerations related to inadmissibility or to matters regarding the exercise of jurisdiction.Footnote ¹⁰⁶ It should also be borne in mind that the establishment of the outer edge of the continental margin on the basis of sediments is only one part of the exercise of delineating the outer limits of the continental shelf. The other part of the exercise is applying the constraints in Article 76(5)–(6), which relates not only to situations where the outer edge of the continental margin is established pursuant to Article 76(4) of UNCLOS but also where it is established in accordance with the Statement of Understanding Concerning a Specific Method to Be Used in Establishing the Outer Edge of the Continental Margin. Footnote ¹⁰⁷ In Bay of Bengal (Bangladesh v Myanmar), ITLOS determined that entitlement to the continental shelf extended beyond the two hundred nautical mile distance line but refrained, for obvious reasons, from determining the specific extent.Footnote ¹⁰⁸ The same underlying approach appears also in Indian Ocean (Somalia v Kenya), where the ICJ held that “[a]n essential step in any delimitation is to determine whether there are entitlements, and whether they overlap.”Footnote ¹⁰⁹ Yet the question arises why it is important only to “determine entitlements of the Parties”Footnote ¹¹⁰ but not fulfill that operation by determining the extent of such entitlements. It is difficult to reject the proposition that, if it is important to establish that the entitlements overlap, the same would apply throughout the overlapping claims rather than constituting a determination in abstracto. It would indeed appear nonsensical to limit the analysis only to determining that the entitlements extend beyond the two hundred nautical mile distance line, because the “starting point”Footnote ¹¹¹ of the delimitation operation is a determination of “the extent and features of the area found to be relevant to the delimitation.”Footnote ¹¹²

In so far as concerns the ICJ’s consideration of the submission of the applicant in Maritime Dispute (Nicaragua v Colombia), two matters appear clear. First, the transmission of a submission to the CLCS qualifies as a determination that the relevant states have established that the continental margin extends beyond two hundred nautical miles. Second, an overlap of entitlements, which, it is recalled, is a prerequisite for any delimitation (as the object “of delimitation consists in resolving the overlapping claims”),Footnote ¹¹³ may arise from the executive summaries of submissions to the CLCS. Interestingly, while recognizing the essential step of determining entitlements in Indian Ocean (Somalia v Kenya), the ICJ did not ascertain that the entitlements of the disputing parties extended beyond the two hundred nautical mile distance line. The ICJ referred to the relevant provisions of Article 76 of UNCLOS that form the basis for outer continental shelf entitlement,Footnote ¹¹⁴ but it did so without determining whether, in this particular case, the conditions were present for concluding that both parties have entitlements to the areas in question. Instead, the ICJ noted that the submissions of the disputing parties to the CLCS indicated an overlap and that “neither Party questions the existence of the other Party’s entitlement to a continental shelf beyond 200 nautical miles or the extent of that claim.”Footnote ¹¹⁵

It may strongly be presumed that neither party disclosed its CLCS submission material to the other. Consequently, it may be supposed that the materials upon which the ICJ relied in ascertaining the bien-fondé for drawing a delimitation line beyond the two hundred nautical mile distance line were merely the executive summaries of both parties. Yet these summaries contain very sparse information, which certainly would not suffice to permit a forum to determine whether the entitlements exist.Footnote ¹¹⁶ It is noteworthy in this regard to observe that President Joan Donoghue explained in her separate opinion that she cast her vote in favour of drawing a delimitation line in the area beyond two hundred nautical miles “with reluctance.”Footnote ¹¹⁷ Judge Patrick Robinson observed in this regard that the “Judgment is bereft of even a scintilla of reliable evidence that the geological and geomorphological criteria, which the Judgment itself refers to in paragraph 193 as being essential in the determination of State entitlements, have been met.”Footnote ¹¹⁸ For these reasons, according to Judge Robinson, “the [ICJ] has effectively eliminated the important difference drawn by [UNCLOS] between a coastal State’s entitlement to a shelf within and beyond 200 [nautical miles].”Footnote ¹¹⁹ Whereas the ICJ did appear to set safeguards with an apparent view to establishing that its jurisdiction to delimit areas beyond two hundred nautical miles need not necessarily always be exercised in situations where the CLCS has not made recommendations, it is noteworthy that the principal reason for which the ICJ decided to entertain the submission, as indicated by Judge Robinson, was that both disputing parties mutually requested the ICJ to delimit the claimed outer continental shelf overlap. This circumstance was the reason for which the ICJ decided that it would “proceed to do so.”Footnote ¹²⁰

The probative value of these mutual assertions that entitlements may extend beyond the two hundred nautical mile distance line can hardly be seen as determinative as to whether or not the criteria underlying the establishment of entitlement to an outer continental shelf are fulfilled. It is also apparent from the judgment that the ICJ is particularly cautious when proceeding with the drawing of a delimitation line in this area. This uncertainty appears unequivocally in the observations concerning a possible grey areaFootnote ¹²¹ in Indian Ocean (Somalia v Kenya). Because the geometric provisional equidistance line established within the two hundred nautical mile distance line was shifted considerably northwards, a grey area would necessarily arise. This assertion applies only if Kenya’s entitlements extend beyond the two hundred nautical mile distance line. In this case, the grey area would result from the shift of the provisional equidistance line that allowed an outer continental shelf entitlement for Kenya in areas where Somalia has sovereign rights to the continental shelf and its superjacent waters.

However, notwithstanding the statement of the ICJ that a determination of entitlements is an essential step in any delimitation,Footnote ¹²² the court observed that the “delimitation might give rise to” a grey area.Footnote ¹²³ Further, as “the existence of this ‘grey area’ is only a possibility, the [ICJ] does not consider it necessary … to pronounce itself on the legal regime that would be applicable in that area.”Footnote ¹²⁴ This qualification is made with a view to avoiding encroachment upon the mandate of the CLCS. Yet it would appear to be questionable reasoning as it necessarily implies that a delimitation is sought to be established while only being a possibility notwithstanding the azimuth being determined. These circumstances reflect the fact that, whereas the ICJ sought a priori to entertain a cautious approach with respect to the establishment of the delimitation line in the area beyond two hundred nautical miles, it paid lip service to the importance given to the determination of entitlements prior to engaging in delimitation. It would be incorrect to infer, from the observation that “[a]n essential step in any delimitation is to determine whether there are entitlements,”Footnote ¹²⁵ that the ICJ operated pursuant to an understanding that such determination is a prerequisite. This arises as it is undisputed that there would have been no qualification as to the existence of a grey area if the ICJ had determined the existence of entitlements.

The dispute in Atlantic Ocean (Ghana v Côte d’Ivoire), insofar as it concerned the area beyond two hundred nautical miles, was unique as Ghana had received its recommendations from the CLCS, while the recommendations to Côte d’Ivoire were pending at the time of the proceedings.Footnote ¹²⁶ This was the first maritime delimitation dispute referred to a court or tribunal where the CLCS had made its recommendations to any of the disputing parties. Accordingly, there could be no question as to whether Ghana had entitlement to the area beyond the two hundred nautical mile distance line. With respect to Côte d’Ivoire, the Special Chamber of ITLOS held that it “has no doubt that a continental shelf beyond 200 [nautical miles] exists for Côte d’Ivoire.”Footnote ¹²⁷ Yet the opinion that it was indisputable that Côte d’Ivoire had entitlement to an area beyond the two hundred nautical mile distance line was substantiated by postulating that “its geological situation is identical to that of Ghana, for which affirmative recommendations of the CLCS exist.”Footnote ¹²⁸ Three observations can be identified.

First, it may be seen that the Special Chamber somehow underestimated the level of difficulty that often arises with respect to having the CLCS endorse proposed outer limits. For instance, as Côte d’Ivoire had made its submission, “[t]he only question which remains open for Côte d’Ivoire is the identification of the outer limits of its continental shelf beyond 200 nm.”Footnote ¹²⁹ It appears incongruous to characterize a point, which is the sole object and purpose of a submission — that is, to receive affirmative recommendations from the CLCS — as something ephemeral or easily sought. Yet this appears to be the understanding expressed by the Special Chamber when relying on the adjective “only” to characterize the legal situation with respect to determining whether Côte d’Ivoire has an entitlement to the claimed outer continental shelf area. Indeed, as has been observed elsewhere, the process before the CLCS “est tout sauf un long fleuve tranquille qui verrait des États côtiers aller à la rencontre d’experts disposés à valider leurs demandes sans trop de difficulté.”Footnote ¹³⁰ Accordingly, it may not be presumed that the CLCS will necessarily endorse submitting coastal states’ proposed outer limits.

Second, geology plays only a secondary role in the determination of entitlement to the outer continental shelf. Yet the Special Chamber substantiated its understanding in Atlantic Ocean (Ghana v Côte d’Ivoire) that the entitlement of Côte d’Ivoire could not be questioned with the observation that the geological setting of Côte d’Ivoire is identical to that of Ghana, for which there were affirmative recommendations from the CLCS.Footnote ¹³¹ That entitlement does not rest on geology is firmly confirmed in Bay of Bengal (Bangladesh v Myanmar). In that case, ITLOS refused to accept Bangladesh’s argument that Myanmar had no entitlement to an outer continental shelf due to a tectonic boundary.Footnote ¹³² Determining entitlement to the area beyond two hundred nautical miles is first and foremost a geomorphological undertaking in which bathymetry and morphology play a primary role and where the role of geology is secondary and only relevant where bathymetry or morphology do not allow the extent of the continental margin to be conclusively determined. Consequently, rather than basing its reasoning on the underlying geology, the Special Chamber might have undertaken an a priori geomorphological assessment,Footnote ¹³³ as any forum “is to make use of geology only so far as required for the application of international law.”Footnote ¹³⁴

Third, it appears a misconception to conclude that, because a neighbouring coastal state has received affirmative recommendations, the same will apply to Côte d’Ivoire, as the conditions underlying entitlement to the outer continental shelf may vary significantly from subregion to subregion. This appears symptomatically in the consideration of Côte d’Ivoire’s submission by the CLCS.Footnote ¹³⁵

In sum, it may be a daunting exercise for a court or tribunal to determine that disputing parties have entitlements to outer continental shelf areas prior to the CLCS having completed its consideration of the relevant submissions. There can be no question of determining entitlement to the relevant areas unless the court or tribunal assumes a similar role to that of the CLCS, which for obvious reasons is not possible. In these circumstances, courts and tribunals have to establish delimitation lines without asserting a conclusive understanding as to whether the states in question are vested with entitlements, notwithstanding the reassuring statements that “[a]n essential step in any delimitation is to determine whether there are entitlements.”Footnote ¹³⁶

understanding of entitlement by the clcs

The CLCS makes recommendations, which per se are not binding on any state.Footnote ¹³⁷ A state may decide to disagree and establish outer limits of the continental shelf that are not made on the basis of the relevant recommendations of the CLCS. Yet, where this arises, it is unlikely that such limits would be opposable to third states. This follows from the dominant judicial and arbitral decisions attaching importance to outer limits that are based on the recommendations of the CLCS, which go beyond the black letter of Article 76Footnote ¹³⁸ and imply that it is not possible to achieve final and binding limits other than by having such limits based on the recommendations of the CLCS.Footnote ¹³⁹ This understanding can by no means be seen to be in conflict with the inherency doctrine but merely reflects the observation that, while rights to the continental shelf are inherent, the breadth of the continental shelf under international law is not at the discretion of states to determine.Footnote ¹⁴⁰ In any event, where the outer limits of the continental shelf are based on the recommendations of the CLCS, these may not, in principle, be subsequently challenged.Footnote ¹⁴¹

There is a non-negligible number of instances in which submitting coastal states have not been able to vindicate their proposed outer limits vis-à-vis the CLCS. A famous example is the area claimed in the submission of the United Kingdom with respect to Ascension Island,Footnote ¹⁴² the entirety of which was rejected by the CLCS. Yet there are also other situations where submitting coastal states have not been successful in their endeavours to have the CLCS endorse conformity with Article 76 of UNCLOS of their proposed continental shelf outer limits. The recommendations of the CLCS to Japan can also be seen to fall within this category.Footnote ¹⁴³ A more recent example involves the recommendations to South Africa.Footnote ¹⁴⁴ Parts of the latter’s submission, pertaining to vast areas, were not endorsed by the CLCS, including the claimed generative feature of Southern Mozambique Ridge. Other areas were not endorsed, but, rather than completing its consideration of those areas, the CLCS invited the submitting coastal state to “investigate whether additional bathymetric and geophysical information might support a revised submission for the determination of the outer limits of the continental shelf beyond 200 [nautical miles].”Footnote ¹⁴⁵ It is beyond any doubt that these positions have not been taken on the basis of abstract information appearing in the executive summaries.

The risks that follow from establishing delimitation lines in the absence of recommendations from the CLCS may also arise where one of the disputing parties has received affirmative recommendations. As indicated earlier, the submission of Côte d’Ivoire is illustrative in this regard. In its revised submission of 2016, Côte d’Ivoire established fifteen foot-of-the-continental-slope (FOS) points. Two of these points (FOS 1 and 2) were located on the Côte d’Ivoire-Ghana Marginal Ridge (CGMR), while the remaining thirteen points were located on the Romanche Fracture Zone (RFZ), which the submitting coastal state considered to be a geomorphological continuation of the CGMR.Footnote ¹⁴⁶ Yet, prior to the reading of the judgment by the Special Chamber, the CLCS expressed the view in March 2017 that the FOS points on which the outer limits were based “might be located beyond the jurisdiction of the submitting State.”Footnote ¹⁴⁷ This observation by the CLCS was confirmed upon the reading of the Special Chamber’s judgment, subsequent to which the CLCS “requested that Côte d’Ivoire re-examine the test of appurtenance in light of this finding.”Footnote ¹⁴⁸ Not only did the CLCS not accept the FOS points on the CGMR — because of the maritime boundary established by the Special Chamber in Atlantic Ocean (Ghana v Côte d’Ivoire) — but it also followed from this decision that Côte d’Ivoire was not permitted to rely on those parts of the RFZ that lie to the west of the maritime boundary. This is because the demonstration of continuity of the continental margin with the submerged landmass of Côte d’Ivoire would imply that this feature would have to cross the maritime boundary with Ghana, which, in the view of the CLCS, would not be permissible under Article 76 of UNCLOS.

Accordingly, Côte d’Ivoire had to document the natural prolongation of the FOS points from the land territory without crossing a maritime boundary rather than from the CGMR.Footnote ¹⁴⁹ Whereas geology has not had a primary role in the documentation of entitlement, it may nonetheless have significance where bathymetry and morphology do not clearly establish entitlement. In the presence of a complex bathymetric setting, the submitting coastal state was successful in relying upon seismic data as geological evidence that demonstrates distinctive geological features where active slope processes were used as a supporting criterion to differentiate the continental slope from the continental rise.Footnote ¹⁵⁰ Yet this exercise was only carried out subsequent to the judgment made by the Special Chamber. Accordingly, there is no doubt that the assessment of the Special Chamber, according to which it “ha[d] no doubt that a continental shelf beyond 200 [nautical miles] exists for Côte d’Ivoire,”Footnote ¹⁵¹ was made on the basis of considerations that were subsequently disqualified by the CLCS. This discrepancy derives from the fact that the Special Chamber apparently relied on the FOS points on the CGMR in the revised submission of 2016, while the CLCS did not even consider those FOS points in its preliminary finding concerning the fulfillment of the test of appurtenance. In sum, “[i]t cannot be assumed that [the CLCS] will adopt any State’s submission.”Footnote ¹⁵² This statement has proven correct and certainly must be given due consideration by any court or tribunal prior to establishing delimitation lines in outer continental shelf areas.