2.1. The scope of a special legal act

Coastal states’ rights to the continental shelf exist ipso facto and ab initio.Footnote ¹⁹ To echo the words of the Court:

It is because of the sovereign title to land that the rights of the coastal state to the continental shelf exist ipso facto and ab initio. In the North Sea cases, the Court thereafter held that the inherent nature of such rights to the continental shelf was reflected in the mere fact that ‘no special legal process has to be gone through, nor have any special legal acts to be performed’.Footnote ²¹ Yet, notwithstanding coastal states’ inherent rights to the continental shelf, those coastal states that intend to establish its outer limits shall ‘submit particulars of such limits to the Commission’Footnote ²² within a certain time frame. This implies that the clause on inherent rights in ‘Article 77 paragraph 3, . . . does not remove from the coastal State the burden of demonstrating its entitlement’Footnote ²³ to the outer continental shelf, although, as mentioned earlier, not being deprived of the right to ‘reject the Commission's approach’.Footnote ²⁴

Not only does the definition of the legal continental shelf in the Convention materially differ from the definition in the 1958 Convention on the Continental Shelf,Footnote ²⁵ but it also includes a distinctive constitutive procedure incumbent on those states that intend to establish the outer limits of the continental shelf. The establishment of the outer limits of the continental shelf in disregard of the obligation to submit particulars of such limits to the Commission is an internationally wrongful act of that state and ipso jure non-opposable to other states. It should in this context also be noted that the Court commented in an obiter dictum in Territorial and Maritime Dispute between Nicaragua and Honduras that ‘any claim of continental shelf rights beyond 200 miles must be in accordance with Article 76 of [the Convention] and reviewed by the Commission on the Limits of the Continental Shelf established thereunder’.Footnote ²⁶ One could question whether the Court's use of the term ‘review’ is unfortunate given that, according to Article 76(8) of the Convention, the Commission ‘shall make recommendations’Footnote ²⁷ on matters related to the establishment of the outer limits of the continental shelf. To ‘review’ would seem to imply a power to impose one's opinion,Footnote ²⁸ whereas the Commission does not have powers to impose its view upon states; the latter being, as mentioned earlier, in principle, free to disregard the recommendations of the Commission. Be that as it may, the essential point is that, even though in international law there is only a single continental shelf,Footnote ²⁹ it is safe to assert that, in order to establish the outer limits, a ‘special legal process has to be gone through’ that constitutes a ‘special legal [act] to be performed’.Footnote ³⁰

Article 7 of Annex II to the Convention provides that the establishment of the outer limits shall be done in conformity with the provisions of Article 76(8) of the Convention. This is not equivalent to saying that the outer limits shall be based on the recommendations of the Commission. Article 76(8) of the Convention provides only that the limits are final and binding where they are established on the basis of its recommendations. Yet, what is of interest for the purposes of this paper is that it would seem evident that the opposability that flows from the presumption of validity of the recommendations of the Commission presupposes the conformity of the recommendations with the text of Article 76 of the Convention, hence rendering any conclusions arising from the above distinctive wordings in Articles 76(8) and 7 to Annex II to the Convention to some extent a game of words. Nevertheless, that distinction accentuates the postulate that the recommendations of the Commission do have normative characteristics, because they are presumed to be made in accordance with Article 76, from which the final and binding characteristics of the outer limits arise. Further, whereas the Secretary-General ‘shall give due publicity’ to the information ‘permanently describing the outer limits’,Footnote ³¹ the question has been raised whether the Secretary-General will, pursuant to Article 76(9) of the Convention, give publicity to outer limits that are established otherwise than in conformity with the recommendations of the Commission. As observed by Judge Wolfrum, where the outer limits are established otherwise than in conformity with the recommendations of the Commission, the Secretary-General ‘would be unable to accept them and to give them the publicity as provided for under Article 76, paragraph 9, of the Convention’.Footnote ³² This would corroborate the fact that a presumption of validity accompanies the recommendations of the Commission and, as a consequence, the outer limits that are established otherwise than on the basis of such recommendations may be presumed contrary to Article 76 of the Convention. In other words, notwithstanding the fact that a boundary ‘represent[s] . . . a legal reality which necessarily impinges upon third States, because they have effect erga omnes’,Footnote ³³ the outer limits established otherwise than on the basis of recommendations of the Commission would not, in principle, be binding on third states. For these reasons, it may be held that, notwithstanding the fact that coastal states may reject the recommendations of the Commission and establish their outer limits otherwise than on the basis of the recommendations, such limits would not easily be enforceable: ‘they may be challenged in practice and to undertake or license economic activities on such part of the shelf may be difficult in practice.’Footnote ³⁴ Further, it could be held that third states would, pursuant to Article 137(3)Footnote ³⁵ of the Convention, be under an international legal obligation not to recognizeFootnote ³⁶ outer limits that are not established on the basis of the recommendations of the Commission, because these would normally, given the presumption of validity that accompanies the recommendations of the Commission, be assumed contrary to Article 76 of the Convention and as appropriate an encroachment of the Area.Footnote ³⁷ The now famous finding of the Court with regard to the validity of unilateral delineations, in the Fisheries Jurisdiction case,Footnote ³⁸ would hence apply equally to the establishment of the outer limits of the continental shelf, in which the recommendations of the Commission would, it must be recognized, have a central importance in the determination of whether such limits are opposable to third states, provided that the treaty obligation incumbent upon the Commission, to make recommendations in accordance with Article 76 of the Convention, is duly fulfilled. Any non-fulfilment of that obligation, namely where the recommendations are not in accordance with Article 76 of the Convention, must be seen as a circumstance to challenge the opposability of such outer limits.Footnote ³⁹ In other words, it does not follow from the assumption of validity of the recommendations that its conformity with Article 76 may not be challenged. The contrary would be tantamount to determining that the recommendations are immune from review,Footnote ⁴⁰ which would seem nonsensical given the overall importance that Part XI of the Convention maintains. Yet, the Commission cannot be party to contentious proceedings,Footnote ⁴¹ and as such, the presumption of validity of its recommendations would not transfer the onus probandi onto the discontented submitting coastal state, which would have disregarded the recommendations of the Commission.Footnote ⁴² Hence, it would be for State AFootnote ⁴³ – challenging the validity of the outer limits claimed by State B, which were established otherwise than on the basis of the recommendations of the Commission – to bear the onus probandi to challenge the invalidity of State B's proposed outer limits, a priori, as appropriate, according to the mere fact that they were not established on the basis of the recommendations of the Commission and therefore are not in accordance with Article 76 of the Convention.

2.2. Normative actions

The Commission has not been vested with powers to adopt legal instruments that would be binding upon states parties to the Convention and the Scientific and Technical GuidelinesFootnote ⁴⁴ (‘the Guidelines’) are, per se, not legally binding on states parties. It is true that subsequent agreements may ‘have a bearing on the juridical situation of the parties and on the rights that each one of [the states parties] could properly claim’.Footnote ⁴⁵ Yet, only agreements ‘between the parties’Footnote ⁴⁶ may constitute subsequent agreements within the meaning of Article 31(3)(a)Footnote ⁴⁷ of the Vienna Convention on the Law of Treaties (‘the Vienna Convention’).Footnote ⁴⁸ The Commission cannot, for evident reasons, be a state party to the Convention and therefore the Guidelines can not constitute a subsequent agreement within the meaning of Article 31(3)(a) of the Vienna Convention. That is not equivalent to saying that the practice based on the Guidelines could not instigate a ‘subsequent practice’, within the meaning of Article 31(3)(b) of the Vienna ConventionFootnote ⁴⁹ between the states parties. Given the legitimacy that its endorsement confers to submitting coastal states’ outlined outer limits, the practice of the Commission could prompt states parties to align their reasoning and interpretation of the Convention with that of the Commission.Footnote ⁵⁰ Hence, it could be argued that the Guidelines are susceptible to be a legal source for submitting coastal states and, to the extent that states align their reasoning with that of the Commission, these could constitute a source of subsequent practice within the meaning of Article 31(3)(b) of the Vienna Convention. Further, according to the Guidelines, their purpose is not only to clarify to submitting coastal states the required ‘scope and depth of admissible scientific and technical evidence’,Footnote ⁵¹ but also to ‘clarify its interpretation of scientific, technical and legal terms contained’ in the Convention.Footnote ⁵² That raison d'être is due to the Commission's understanding that ‘clarification is needed, because various terms in the Convention might be left open to several possible and equally acceptable interpretations’.Footnote ⁵³ In other words, because of the lack of precision in Article 76 of the Convention, the Commission feels it necessary to ‘clarify its interpretation’ of Article 76 of the Convention. In a now famous finding of the Permanent Court of International Justice (‘the Permanent Court’), interpretation was held to mean ‘to give a precise definition of the meaning and scope’Footnote ⁵⁴ of a legal document. The question whether, or to what extent, the clarification provided by the Commission is an interpretation of the Convention may accordingly be addressed by determining whether the Commission seeks to confer a ‘precise definition of the meaning and scope’Footnote ⁵⁵ of Article 76 of the Convention.

The Guidelines address a range of issues, one of which concerns the application of the depth constraint in paragraph 5 of Article 76 of the Convention. Chapter 4 of the Guidelines provides a list of criteria governing the selection of valid depth constraints for the purpose of constructing depth-constraint lines. Yet, it is noteworthy that Article 76(5) of the Convention refers solely to ‘the 2,500 metre isobath’Footnote ⁵⁶ without a qualification where, for example, there are multiple 2500-m isobaths, the application of which may have great significance with regard to the extent of the outer limits. Pursuant to Point 4.4.2 of the Guidelines,Footnote ⁵⁷ the qualification of isobaths would occur subject to the criteria of whether the isobaths are, on the one hand, simple or whether they are, on the other hand, complex or repeated in multiples. Where isobaths are simple, the identification of the applicable isobaths would be straightforward. On the other hand, where they are complex or repeated in multiples:

Thus, according to the Commission, the selection of the most salient points along the 2500-m isobaths for the purpose of constructing the depth-constraint line is primarily subject to a bifurcation between isobaths that are simple and isobaths that are complex or repeated in multiples. Only in the latter case would the choice of the applicable isobaths become subject to considerations related to, for example, the general configuration of the continental margin in accordance with which the Commission identifies, to paraphrase the Commission in its summary of recommendations to Norway,Footnote ⁵⁹ ‘valid depth constraint’Footnote ⁶⁰ points for the purpose of constructing depth-constraint lines. Yet, according to the now established practice of the Commission, all isobaths that are within the common envelope of the foot of the continental slope are valid isobaths for the purpose of constructing depth-constraint lines, not only ignoring whether these are simple or are complex or repeated in multiples, but also to some extent ignoring the qualification of whether the seafloor high on which the margin is located is a natural component of the continental margin.Footnote ⁶¹ Notwithstanding the correctness of the above, the author of this paper is of the view that the qualification of ‘the 2,500 metre isobath’Footnote ⁶² to a ‘valid depth constraint’ according to various cumulative criteria is a precise definition of the meaning and scope of the relevant treaty provision and hence constitutes a legal interpretation by the Commission of Article 76 of the Convention.

Pursuant to a plain reading of paragraphs 5 and 6 of Article 76 of the Convention, the 2500-m isobath may only be applied on ‘seafloor highs’, which are submarine elevations that are natural components of the continental margin:

In other words, where the seafloor high is a submarine elevation that is a natural component of the continental margin, the delineation of the outer limits may be constrained either by the 350-m distance constraint line or by the 2500-m isobath depth constraint. The Commission has recognized this understanding in its Guidelines: ‘[s]ubmarine ridges constitute a special case which is subject to the rules of entitlement given in paragraph 4 (a) (i) and (ii), but it is also subject to the more stringent constraint provided by paragraph 6.’Footnote ⁶⁴ Thus, the classification of a seafloor high as a submarine ridge or a submarine elevation serves the purpose of not only distinguishing it from an oceanic ridge, within the meaning of Article 76(3) of the Convention, but also determining whether the 2500-m isobaths may be utilized as a basis for the depth constraint line for the purpose of establishing the outer limits of the continental shelf. The above is exemplified in the Commission's recommendations to Norway on 27 March 2009, in which it held that the ‘application of the depth constraint involves the examination of whether the seafloor highs . . . may be considered natural components of the continental margin’.Footnote ⁶⁵

The criteria according to which classifications of a seafloor high are conducted, and hence eligible as a basis for the application of the 2500-m isobaths, are thus of great importance. In order, it must be assumed, to duly fulfil its mandate, the Commission has, it will be demonstrated, adopted its own criteria that govern the classification of seafloor highs, despite the fact that Article 76 is silent as to the constitutive criteria for a seafloor high to be classified a submarine elevation that is a natural component of the continental margin. In its Guidelines, the Commission has expressed the view that geological considerations determine, in addition to geomorphological elements, whether a seafloor high is a submarine elevation that is a natural component of the continental margin:

Hence, the Commission seems to base the classification of a seafloor high as a natural component of the continental margin on whether there is geological continuity. This approach is further echoed in a paper published by two Commission members, who argue that:

The same line of reasoning flows from other authors arguing that ‘[t]he use of the term natural components in article 76.6 suggests that the features must be physically part of the margin and may be taken to imply a geomorphic and/or geologic definition of what is a natural component’.Footnote ⁶⁸ It is also of interest to observe that Oxman has noted that, during the eighth session of the UN Third Conference on the Law of the Sea, prior to the compromise proposal of paragraphs 3 and 5 bis (which became paragraph 6) during the ninth session, the Russian proposal to limit the seaward extension of jurisdiction over the continental shelf to 300 M, where the continental margin extended the 200-M limit, was met with opposition from delegations because this formula ‘ignores the geological basis of the continental shelf doctrine . . . and it might stimulate demands for a universal 300-mile zone, irrespective of geology’.Footnote ⁶⁹ It is not the purpose to decide conclusively on the correctness of these considerations. Yet, what is of importance is that the above, in the view of the author of this paper, is not limited to a technical view stricto sensu. On the contrary, it seeks to give a precise definition of the meaning and scope of Article 76(6) of the Convention and constitutes, as appropriate, a treaty interpretation that is undertaken by the Commission. Further, in various recommendations, the Commission has on geological grounds either disqualified or qualified the classification of a seafloor high as a submarine elevation that is a natural component of the continental margin, which has a bearing on the extent of seaward limits of the relevant coastal state. In its recommendations to Australia, the Commission dismissed the application of the depth constraint with regard to the Williams Ridge ‘since the nature of the submarine high with regard to Article 76, paragraph 6, is not considered proven’.Footnote ⁷⁰ In other words, because of the absence of geological processes, the classification of the Williams Ridge as a submarine elevation that is a natural component of the continental margin was not accepted. Further, it seems that Australia also argued that Joey Rise was a submarine elevation that is a natural component of the continental margin ‘on morphology only’.Footnote ⁷¹ Despite recognizing that Joey Rise was part of the submerged prolongation of the land mass of Australia, the Commission did not accept the view that it was a submarine elevation that is a natural component of the continental margin on the basis of the submitted data concerning the origin of Joey Rise, which were considered ‘too sparse to be conclusive’.Footnote ⁷² By contrast, on the basis of geological considerations, the Central Kerguelen Plateau, Southern Kerguelen Plateau and the Elan Bank were ‘considered natural components of the continental margin of the Heard and MacDonald Islands’ and therefore ‘subject to the application of the depth criterion constraint’.Footnote ⁷³ The above-mentioned findings of the Commission are likely to have major implications for the extent of the submitting coastal states’ outer limits, given that, failing an appropriate classification, only the 350-M distance constraint is applicableFootnote ⁷⁴ and that states are, to some extent, inclined to subject their reasoning to the understanding of the Commission, in order to avoid establishing their outer limits otherwise than on the basis of the recommendations of the Commission.

To sum, it is fair to say that, in fulfilling its mandate, the Commission is not limiting its work to a mere technical assessment of technical data, but seeks to confer precise definitions of the meaning and scope of various provisions in Article 76 of the Convention. The above is a task that it necessarily undertakes in order to fulfil its mandate, which is to make recommendations in accordance with Article 76 of the Convention.

3.1. Competence of the Commission to determine its own mandate

According to a general rule of law, any body possessing jurisdictional powers is vested with powers to determine the extent of its jurisdiction.Footnote ⁷⁶ It is a fundamental principle of international law that the jurisdiction of an international court or international adjudicative body to make decisions in a dispute to which a state is a party is subject to the state's consent. In the Mavrommatis Palestine Concessions case, the Permanent Court held that ‘[i]ts jurisdiction is limited . . . and only exists in so far as this consent has been given’ and that the Court will, before giving judgment on the merits of the case, ‘satisfy itself that the suit before it, in the form in which it has been submitted’,Footnote ⁷⁷ falls within its jurisdiction. Yet, it is well established that international judicial forums may be vested with incidental jurisdictional powers as recognized in the maxim accessorium sequitur principale. In Certain German Interests in Polish Upper Silesia, the Permanent Court held that ‘the interpretation of other international agreements is indisputably within the competence of the Court if such interpretation must be regarded as incidental to a decision on a point in regard to which it has jurisdiction’.Footnote ⁷⁸

The Commission is not an adjudicative body and is thus not vested with judicial powers and, as such, any reasoning by way of analogy to rules and practice from arbitral law should only be used with caution. It can readily be held that the determination of which conditions need to be fulfilled in order to comply with, for example, the constitutive criteria in paragraphs 5 and 6 of Article 76 of the Convention are not incidental to a qualitative assessment of technical data. However, the determination of whether the Commission may be seen to have been entrusted with a task that implies adopting a rationale on which the technical assessment is performed should, ideally, not be considered in terms of whether it would be incidental to its competence. Not only is the Commission not a judicial body, which would disqualify the application mutatis mutandis of judicial principles, but the mandate of the Commission also requires the Commission to take an approach in which it is capable, as appropriate, of rejecting per se a coastal state's claim to the outer continental shelf. That exercise is not necessarily incidental to a technical assessment; but it is a task that, where relevant and appropriate, is a necessary step that must be taken in order for the Commission to comply with its mandate.Footnote ⁷⁹

It has been argued that the Commission:

The central question is whether the Commission is vested with the competence to determine the extent of its mandate, which is a pertinent question in situations in which, for instance, there are disagreements of fundamental importance between the Commission and submitting coastal states as to the interpretation of Article 76 of the Convention. In contrast to the institutions established by the Convention, the International Seabed Authority,Footnote ⁸¹ and the International Tribunal on the Law of the Sea (Tribunal),Footnote ⁸² the Commission does not possess international legal personality. The Commission is only a treaty body. However, the fact that the Commission is only a treaty body does not necessarily mean it is deprived of Kompetenz-Kompetenz with regard to the determination of the scope of its mandate.Footnote ⁸³ In this regard, it is of interest to refer to the recent Abyei Arbitration award.Footnote ⁸⁴ In that dispute between the government of Sudan and the Sudan People's Liberation Movement/Army, the Permanent Court of Arbitration (PCA) held that the fact that the ABC Expert Commission was composed of experts in history, geography, and African culture, to the exclusion of lawyers, in conjunction with the fact that it was to reach its decision on the basis of ‘scientific analysis and research’ and therefore is not ‘an adjudicative body strictu sensu,Footnote ⁸⁵ does not mean that it lacked Kompetenz-Kompetenz’.Footnote ⁸⁶ The PCA held that the ABC Expert Commission was held to be ‘vested with the competence to interpret, and thus necessarily determine the bounds of, its own mandate’.Footnote ⁸⁷ In contrast to the ABC Expert Commission, which was entrusted with the adoption of a report that would be ‘final and binding on the Parties’,Footnote ⁸⁸ the Commission solely makes recommendations, which, by their very nature, are not binding. As such, this would distinguish the Commission from the ABC Expert Commission on the basis of an important aspect of its powers. By the same token, it has been observed that it is ‘the nature of the act which reflects the nature of the organ taking the decision’.Footnote ⁸⁹ De Marffy Mantuano has argued that the Commission:

Yet, this does not necessarily entail that it would be inapposite to transpose the legal reasoning of the PCA in the Abyei Arbitration to the determination of whether the Commission can be seen to be vested with Kompetenz-Kompetenz. It would seem that the qualifying element determining whether the Commission is vested with Kompetenz-Kompetenz would be whether, or to what extent, the Commission is, in the absence of authoritative legal guidance, vested with powers to interpret the Convention as a requisite to fulfil its mandate. As mentioned above, the Commission itself perceives its competence to include powers to interpret non-clarified terms in Article 76 of the Convention. It has also been demonstrated earlier that the Commission may to some extent need to impose its view as to the application of Article 76 of the Convention vis-à-vis submitting coastal states. That approach has been characterized as an interpretation of the provisions of Article 76 that the Commission, as appropriate, may be compelled to undertake in order to comply with its mandate, from which it follows that the Commission necessarily is vested with Kompetenz-Kompetenz. Further, the above contention transpires from the recommendations of the Commission to the United Kingdom of Great Britain and Northern Ireland with regard to the Ascension Island submission.Footnote ⁹¹ From those recommendations, it is clear that the Commission, in practice, seeks to enforce its own consideration as to the limits of its competence, despite disagreement with the submitting state on issues of fundamental importance on this particular point.Footnote ⁹² As a matter of fact, the Commission seems to explicitly spell out its own perception of whether it is vested with Kompetenz-Kompetenz in its consideration of the Ascension Island submission. The United Kingdom, according to the summary of recommendations, seems to have argued that paragraph 4 of Article 76 only becomes operative once the outer edge of the continental margin has been established on the basis of paragraph 3 of Article 76. On that approach, the view of the Commission would, it seems, necessarily be limited to ensuring that the submitted data would support the proposed outer limits, without considering whether the test of appurtenance is fulfilled or without seeking to impose its view as to the applicable criteria dictating the classification of the seafloor high from which the outer edge of the continental margin stems, with a view to determining the applicable constraints.Footnote ⁹³ The latter would fall within the domain of the submitting coastal state. It follows from the Statement by the Chairperson of the Commission that the United Kingdom recognized the terms of reference of the Commission and the obligations that flowed from them. However, it appears that the United Kingdom deemed that, by disagreeing with the United Kingdom as to the relevance of paragraphs 1–3 of Article 76 of the Convention, for the fulfilment of its mandate, the exercise of technical expertise by the Commission could prejudice the rights of states parties to the Convention. The United Kingdom argued that:

This would seem, by way of extension, to imply that the Commission should not endeavour proprio motu to determine whether, for example, the outer edge of the continental margin stems from an oceanic ridge, submarine ridge, or submarine elevation.Footnote ⁹⁵ In other words, the Commission is not vested with powers to interpret the Convention. Instead, the Commission should, it would seem according to the arguments made by the United Kingdom, subject itself to a technical verification of the data to the exclusion of questioning, for example, the submitting state's classification of the seafloor high – at least ‘where there are fundamental questions over the interpretation of the Convention’.Footnote ⁹⁶ By contrast, were the Commission to act otherwise – that is, not actively to enforce its mandate, as spelled out in its terms of reference – it would to some extent endorse submitting coastal states’ various and contradictory interpretations of the Convention, given that the outer limits that would be based on such recommendations would, although not irrebuttable, in principle, be final and binding within the meaning of Article 76(8) of the Convention. One could rephrase the formula as follows: were the Commission, in the absence of any authoritative legal guidance, to analyse inter alia paragraphs 4–6 of Article 76 of the Convention in isolation from its paragraphs 1 and 3, the Commission would not fulfil the role incumbent on it pursuant to Article 3(1)(a) of Annex II to the Convention. The Commission did not follow the reasoning of the United Kingdom, to the discontentment of the latter,Footnote ⁹⁷ with regard to its alleged circumscribed mandate to examine paragraph 4 of Article 76 in isolation from paragraphs 1 and 3 of Article 76. In the words of the Commission, the entitlement ‘to establish outer limits to their continental shelves beyond 200 M depends on the location of the base and the FOS within the submerged prolongation’ of the land mass.Footnote ⁹⁸ The Commission disagreed with the rationale and methodology that the United Kingdom utilized to delineate the outer edge of the continental margin, one of which, and most importantly, was the definition of the continental margin itself,Footnote ⁹⁹ consistent with which the Commission held that the ‘[s]ubmission in respect of Ascension Island does not satisfy the test of appurtenance’.Footnote ¹⁰⁰ Therefore, the Commission recommended ‘that, in the area around Ascension Island, the United Kingdom does not establish outer limits of its continental shelf beyond 200 M’,Footnote ¹⁰¹ despite there being ‘fundamental questions over the interpretation of the Convention’ with which the United Kingdom, it would seem, did not agree.Footnote ¹⁰²

The Commission has given a clear articulation of its own understanding of the scope and nature of the treaty obligations incumbent upon it, one of which is the Kompetenz-Kompetenz to determine the boundaries of its own mandate. Its terms of reference require the Commission to adopt an approach consistent with which it shall make recommendations that are in accordance with Article 76 of the Convention, even in the presence of a clear disagreement with the submitting coastal state. It is of interest to note that Judge Wolfrum has taken a view that would seem to stand in contrast to the approach undertaken by the Commission in its consideration of the Ascension Island submission, when he argued that:

That statement stands in clear contrast to the Commission's consideration of the Ascension Island submission in which the view of the United Kingdom in the recommendations of the Commission was supplanted by that of the Commission.Footnote ¹⁰⁴ Further, it would also seem to stand in contrast to the Commission's approach undertaken in the consideration of the submission of Australia in which, as mentioned earlier, it disagreed with the classifications of William's Ridge and Joey Rise as submarine elevations that are natural components of the continental margin, and hence dismissed the application of the depth constraint on the basis of those features.

The approach adopted by the Commission is a corollary of its mandate as spelled out in Article 3(1)(a) of Annex II to the Convention and, as such, cannot be seen to exceed its competence. However, the point raised by the United Kingdom in its note of 11 January 2011 to the UN Secretary-General – that the Commission would have benefited from legal advice – would seem to have merit.Footnote ¹⁰⁵ Nevertheless, it should not be ignored that, although susceptible to a rise in legal problems, nothing can prevent submitting coastal states that disagree with the Commission from ignoring the recommendations of the Commission to the extent that there is disagreement between the state and the Commission. While susceptible to raising legal problems, the above is the necessary corollary to the principle of fundamental importance that it is a matter for the state to establish the outer limits of its continental shelf.Footnote ¹⁰⁶

3.2. A legislative anomaly?

The above-mentioned powers of the Commission are significant and, to some extent, a result of its autonomy. In the words of Jarmache, the Commission ‘dispose d'une compétence normative directe . . . parce que sa marge de manoeuvre, bien réelle, est fondée sur une absence de rattachement explicite à une autorité supérieure ou à une organisation déterminée’.Footnote ¹⁰⁷ The same author observes that the Commission ‘pourrait bien être un corps non susceptible de contrôle’.Footnote ¹⁰⁸ However, that somehow provocative statement should be seen in light of the fact that the members of the Commission are elected by the Meeting of States Parties, the latter hence exerting some form of control over the former. On the one hand, there is certainly some truth in the view that the lack of institutional subordination is an autonomous attribute enabling the Commission to fulfil its mandate according to its best endeavour. On the other hand, the Meeting of States Parties would not unanimously share the view that the autonomous status of the Commission confers on it powers to undertake interpretations of the Convention. De Marffy Mantuano has in this regard highlighted that the Meeting of States Parties has ‘clairement signifié à la Commission que son indépendence était uniquement liée à sa function et ajouta qu'en ce qui concerne l'interprétation de la Convention, seuls les Etats Parties ou l'assemblée générale ont compétence’.Footnote ¹⁰⁹ That position finds support in the understanding that an interpretation of a treaty provision should be done according to the canons of treaty interpretation, the fulfilment of which the Commission cannot, consistently with international-law principles, necessarily be presumed to exercise. Judge Treves has noted that, when the Commission ‘performs legal, judicial-like tasks, there are many requirements of judicial activities that it does not observe. In my view, this is a matter of concern. Legal matters should be treated according to legal procedures and with legal expertise’.Footnote ¹¹⁰

The customary-law rules of treaty interpretation, as reflected in the Vienna Convention,Footnote ¹¹¹ must be seen as the applicable law to determine an ordinary meaning of the provisions in Article 76 of the Convention. The question could legitimately be raised whether the Commission can be considered to be vested with the requisites, often at a highly technical level, to interpret Article 76 of the Convention pursuant to the canons of treaty interpretation. In other words, would the Commission, given the autonomous legal definition of the continental shelf as embraced in Article 76, be vested with the requisites to duly fulfil its mandate? The preliminary step in treaty interpretation would be that ‘the text must be presumed to be the authentic expression of the intention of the parties; and that, in consequence, the starting point of interpretation is the elucidation of the meaning of the text’.Footnote ¹¹² In certain circumstances, the treaty interpreter should, in accordance with customary treaty interpretation rules as reflected in Articles 31–2 of the Vienna Convention, have recourse to the travaux préparatoires;Footnote ¹¹³ or there could even be circumstances, for example, in which the treaty interpreter should not give an ordinary meaning to a treaty provision.Footnote ¹¹⁴ Arguably, the Commission could be considered not necessarily capable of fulfilling such a role in a manner consistent with the customary rules of treaty interpretation. However, conversely, it is clear that the Commission cannot take a standpoint – for example, when endorsing applicable 2500-m isobaths for the purpose of constructing depth constraint lines or determining constitutive criteria applicable to identify submarine elevations that are natural components of the continental margin – that would be variable in scope, depending upon subjective arguments set forward by submitting coastal states, and still ‘make recommendations in accordance with Article 76’ of the Convention.Footnote ¹¹⁵ This is not tantamount to saying that the Commission is vested with powers to undertake authoritative interpretations of the Convention, which would be a prerogative of states parties;Footnote ¹¹⁶ this is nothing other than a fundamental principle of treaty law according to which only the legislators have the power to interpret the law, as written in the famous maxim of Roman law ejus est interpretari, cujus est condere leges.Footnote ¹¹⁷ However, as mentioned by Oxman, it should not be forgotten that it ‘is the Convention, not the coastal state, that determines the maximum extent’Footnote ¹¹⁸ of the continental shelf and the Commission has been entrusted with a task that cannot be done in clinical isolation from legal considerations. These recommendations may, although they are not irrebuttable,Footnote ¹¹⁹ serve as verifications of title to the outer continental shelf where, for instance, several coastal states have overlapping claims to the relevant parts of the outer continental shelf. Finally, as has been mentioned earlier, submitting coastal states are not deprived of the right to disagree with the Commission, which, in principle, could imply that outer limits would be established otherwise than on the basis of the recommendations of the Commission. Various legal questions would be susceptible to arise were coastal states to establish the outer limits otherwise than on the basis of the recommendations of the Commission, the crucial point of which being that, notwithstanding the normative characteristics that appertain to such recommendations, these still remain recommendations and can hence not be considered an encroachment of states parties’ right to establish the outer limits of the continental shelf otherwise than on the basis of the recommendations of the Commission.