The Irish partial submission to the Commission on the Limits of the Continental Shelf in 2005: A precedent for future such submissions in the light of the "disputed areas" procedures of the commission?

Ocean Development and International Law

Volumn 37, Issue 3-4, 2006, Pages 299-317

  Symmons, Clive R ^a,b  

^a NATIONAL UNIVERSITY OF IRELAND   (Ireland)

^b TRINITY COLLEGE DUBLIN   (Ireland)

Author keywords

Disputed areas of seabed; Ireland; LOSC Article 76; Partial submission on the outer limits of continental shelf

Indexed keywords

CONTINENTAL SHELF; DISPUTE RESOLUTION; ENVIRONMENTAL LEGISLATION; LEGAL SYSTEM; SEAFLOOR;

ARCTIC; ATLANTIC ISLANDS; ATLANTIC OCEAN; DENMARK; EURASIA; EUROPE; FAROE ISLANDS; FRANCE; ICELAND; IRELAND; NORTHERN EUROPE; SCANDINAVIA; SOUTHERN EUROPE; SPAIN; UNITED KINGDOM; WESTERN EUROPE;

EID: 33750047233     PISSN: 00908320     EISSN: 15210642     Source Type: Journal    
DOI: 10.1080/00908320600800937     Document Type: Article

References (105)

1. The Commission on the Limits of the Continental Shelf (CLCS) was established pursuant to Annex II of the 1982 U.N. Convention on the Law of the Sea (LOSC), 1833 U.N.T.S. 397. Generally respecting the CLCS, see the CLCS Web site at www.un.org/Depts/los/clcs new/clcs/home.html.
2. "Ireland: Submission to the [CLCS] pursuant to Article 76, paragraph 8 of the UN Convention on the Law of the Sea 1982 in respect of the area abutting the Porcupine Abyssal Plain," Part 1: Executive Summary, 2005, submitted on May 25, 2005, and see Note verbale from the U.N. Secretary-General, CLCS.04.2005.LOS (Continental Shelf Notification). The Russian Federation submission was made on Dec. 20, 2001; see Note verbale from the Secretary-General, CLCS.01.2001.LOS (Continental Shelf Notification). The Brazilian submissionwas made on May 21, 2004, Note verbale from the Secretary-General, CLCS.02.2004.LOS (Continental Shelf Notification) and see the Brazilian Executive Summary of their submission. The Australian submission was made on Nov. 15, 2004, Note verbale from the Secretary-General, CLCS.03.2004.LOS (Continental Shelf Notification) and see the Australian Executive Summary of their submission. All of the submissions and executive summaries are available at the CLCS Web site, supra note 1. On the Australian submission,
3. see A. Serdy, "Towards Certainty of Seabed Jurisdiction beyond 200 Nautical Miles from the Territorial Sea Baseline: Australia's Submission to the Commission on the Limits of the Continental Shelf," Ocean Development and International Law 36 (2005): 201-217.
4. The CLCS Rules of Procedure, as revised July 2, 2004, are available at the CLCSWeb site, supra note 1. Annex I is titled: "Submissions in case of a dispute between States with opposite or adjacent coasts or in other cases of unresolved land or maritime disputes."
5. Rules of Procedure, Annex III, para. 3.
6. See Irish Executive Summary, supra note 2, at 4.
7. Rules of Procedure, Annex III, para. 5(a). See A. Oude Elferink, "Submissions of Coastal States to the CLCS in Cases of Unresolved Land or MaritimeDisputes" in Legal and Scientific Aspects of Continental Shelf Limits ed. M.H. Nordquist, J. Norton Moore, and T. Heidar (Leiden/Boston: Nijhoff, 2004), 263 at 276: "The approach the CLCS has taken implies[in the case of a 'dispute'] that the rights of other States will not be addressed in the context of a submission by a coastal State without their consent."
8. This terminology was originally very evident in Icelandic parlance (see, e.g., the resolutions in the Althing, Dec. 22, 1978) and is now the standardized phrase used by Ireland in the Executive Summary, supra note 2, at 3, 4.
9. There also was, and still is, a major overlap with the British designations in the area. See C. R. Symmons, "The Rockall Dispute Deepens: An Analysis of Recent Danish and Icelandic Actions," International and Comparative Law Quarterly 35 (1986): 344,
10. and my chapter "Competing Claims in the North Atlantic (Hatton-Rockall) and Celtic Shelf Areas" in a forthcoming book to be published by the Marine Law and Ocean Policy Centre, National University of Ireland, Galway (eds. C. R. Symmons, R. Long, and A. O'Hagan), to be entitled Ireland's Maritime Limits.
11. See Symmons, "The Rockall Dispute," supra note 8, at 347-367.
12. United Kingdom-Ireland Agreement concerning the Delimitation of Areas of the Continental Shelf between the Two Countries, Nov. 7, 1988, 1990 U.K.T.S. 20. See C. R. Symmons, "The UK/Ireland Continental Shelf Agreement: A Model for Compromise in Maritime Delimitation," in International Boundaries and Boundary Conflict Resolution ed. C. Grundy Warr (Durham: IBRU, 1990), 387.
13. See C. R. Symmons, Ireland and the Law of the Sea, 2d ed. (Dublin: Round Hall Press, 2000), at 335 and Dail Debates, vol. 383, col. 2057, where earlier statements in the Dail seemed to imply that the Anglo-Irish delimitation agreement had somehow sidestepped the dispute with the other two contenders.
14. Irish Executive Summary, supra note 2, at 4. See C. R. Symmons, Ireland and the Law of the Sea, 2d ed. (Dublin: Round Hall Press, 2000), at 335 and Dail Debates, vol. 383, col. 2057, where earlier statements in the Dail seemed to imply that the Anglo-Irish delimitation agreement had somehow sidestepped the dispute with the other two contenders.
15. See, e.g., Hansard (HC) WA, Dec. 14, 2004, vol. 428, col. 1069.
16. See Symmons, supra note 11, at 331. See C. R. Symmons, Ireland and the Law of the Sea, 2d ed. (Dublin: Round Hall Press, 2000), at 335 and Dail Debates, vol. 383, col. 2057, where earlier statements in the Dail seemed to imply that the Anglo-Irish delimitation agreement had somehow sidestepped the dispute with the other two contenders.
17. See Symmons, supra note 11, at 331. See C. R. Symmons, Ireland and the Law of the Sea, 2d ed. (Dublin: Round Hall Press, 2000), at 335 and Dail Debates, vol. 383, col. 2057, where earlier statements in the Dail seemed to imply that the Anglo-Irish delimitation agreement had somehow sidestepped the dispute with the other two contenders.
18. Irish Executive Summary, supra note 2, at 4. [Emphasis added]
19. See the wording on potential overlapping seabed areas in theAustralian Executive Summary, supra note 2, at 6, and see belowinfra notes 63-65. It has been claimed that, in the case of the Australian submission to the CLCS in 2004, Australia appeared to understand the word dispute as "synonomous with delimitation" (he seems to mean "lack of" delimitation here). Serdy, supra note 2, at 207.
20. France-Spain, Convention on the Delimitation of the Continental Shelves of the Two States in the Bay of Biscay, Jan. 29, 1974, U.N., National Legislative Series (1980) 445.
21. See Symmons, supra note 11, at 327-329. See C. R. Symmons, Ireland and the Law of the Sea, 2d ed. (Dublin: Round Hall Press, 2000), at 335 and Dail Debates, vol. 383, col. 2057, where earlier statements in the Dail seemed to imply that the Anglo-Irish delimitation agreement had somehow sidestepped the dispute with the other two contenders.
22. See Decision of the Court of Arbitration: Delimitation of the Continental Shelf, (Anglo/French Continental Shelf Arbitration) of June 30, 1977, para. 28, reprinted in 18 I.L.M. 397 (1979).
23. Symmons, supra note 11, at 328. See C. R. Symmons, Ireland and the Law of the Sea, 2d ed. (Dublin: Round Hall Press, 2000), at 335 and Dail Debates, vol. 383, col. 2057, where earlier statements in the Dail seemed to imply that the Anglo-Irish delimitation agreement had somehow sidestepped the dispute with the other two contenders.
24. Anglo/French Arbitration, supra note 19, at para. 28.
25. Ibid., at para. 26.
26. See Symmons, supra note 10, at 396. It is noteworthy that in the Dail it was stated at the time that the extended Anglo-Irish continental shelf line in the Celtic Sea would "not be subject to a dispute with a third party." Dail Debates, Vol. 384, col. 2194.
27. See D. H. Anderson, "France-Spain," in International Maritime Boundaries, ed. J. Charney and L. Alexander (Dordrecht: Nijhoff, 1993), 1722.
28. 499 U.N.T.S. 311.
29. Irish Executive Summary, supra note 2, at 2, and noted in Dail Debates, vol. 603, col. 1303, see infra note 31.
30. Letter to the author from the Spanish Ministry of Foreign Affairs, dated May 2, 2005. [Emphasis added.]
31. See Symmons, supra note 11, at 209.
32. The Spanish legislation appears to be very general on seabed designation and does not as yet list exact coordinates. See, e.g., Ley 15/78 of Feb. 20,1978 on reglamentacion Espanola sobre la ZEE, which is partially applicable to the continental shelf.
33. Irish Executive Summary, supra note 2, at 2, and in Dail Debates, vol. 603, col. 1303, see infra note 31.
34. Dail Debates, vol. 603, cols. 1302, 1303. [Emphasis added.]
35. Note verbale from the Secretary-General, supra note 2.
36. Dail Debates, vol. 603, col. 1302.
37. But in a very ambiguous manner. See comment on this below, infra note 81, and accompanying text.
38. Note Oude Elferink, supra note 6, at 264: "Whereas the savings clause in article 76(10) emphasises that article 76 as such is concerned with the establishment of the outer limit of the continental shelf and not the delimitation of overlapping entitlements between neighbouring States, article 9 of Annex II is specifically concerned with the procedure involving the CLCS" [Emphasis added.]
39. A. Oude Elferink, "Article 76 on the Definition of the Continental Shelf: Questions Concerning its Interpretation from a Legal Perspective," a paper presented at the Symposium on Problems of the Outer Continental Shelf, ITLOS, Hamburg, Sept. 25, 2005, at 16. [Emphasis added.]
40. Irish Executive Summary, supra note 2, at 4.
41. Id.
42. Dail Debates, vol. 603, col. 1302. Under the Rules of Procedure, Annex I, para. 4(b), a submission may also be made by agreement by two or more states without regard to delimitation of boundaries between such states, or as indicated by geodetic coordinates.
43. See Symmons, supra note 11, at 196-197.
44. See Dail Debates, vol. 603, col. 1303.
45. Supra note 27.
46. See infra notes 84-85 and accompanying text.
47. See R. MacNab, "The Outer Limits of the Continental Shelf" in Nordquist et al, supra note 6, at 307-308.
48. See, e.g., the communiqué of July 1989/GP from the Icelandic Foreign Affairs Committee saying that, although Iceland and Denmark had invited the British and Irish to participate in past seabed surveys in the Hatton-Rockall area and/or share the results, only the offer of sharing of data was accepted by the United Kingdom. Even in more recent times, it appears that the parties to the dispute have conducted their own separate surveys in the Hatton-Rockall area without requesting any advance consent, and so forth, from the other counterdesignators in the area.
49. Dail Debates, vol. 603, cols. 1302-1303.
50. Ibid., at 1303.
51. See further infra note 50 and accompanying text.
52. Dail Debates, vol. 603, col. 1302. [Emphasis added.]
53. Irish Executive Summary, supra note 2, at 4. [Emphasis added.]
54. Id. [Emphasis added.]
55. Ibid., at 4, 5. [Emphasis added.]
56. "Note verbale to the Secretary General of the UN from the Permanent Mission of Denmark to the UN," 55.DAN.1 of August 19, 2005;
57. and Note verbale to the Secretary General of the UN from the Permanent Mission of Iceland to the UN," Ref.UTN05080174/97.B.512 of August 24, 2005. Both are available at the CLCS Web site, supra note 1.
58. Note verbale from Denmark and Note verbale from Iceland, supra note 53.
59. Note verbale from the Secretary-General, supra note 2.
60. Supra notes 31 and 33.
61. Note verbale from Denmark and Note verbale from Iceland, supra note 53.
62. See "Note verbale of the Permanent Mission of Canada to the Secretary-General of the UN of January 18, 2002," CLCS.01.2001.LOS/CAN of Feb. 26, 2002;
63. and "Note verbale No.119. N.8 of the Permanent Mission of Denmark to the Secretary-General of the UN of 4 February, 2002," CLCS.01.2001.LOS/DNK of Feb. 26, 2002. Both of these Notes are available at the CLCS Web site, supra note 1.
64. Note verbale from Denmark concerning the Russian submission, supra note 58.
65. "Note verbale of 20 March of the Permanent Mission of Norway to the [UN Secretary-General]," Doc.CLCS.01.2001.LOS/NOR of Apr. 2, 2002, available on the CLCS Web site, supra note 1.
66. Note verbale from Denmark, supra note 53. [Emphasis added.]
67. See infra note 70.
68. Australian Executive Summary, supra note 2.
69. Ibid., at 6, 11, 18, 35.
70. Ibid., at 11, 18, 35.
71. Rules of Procedure, Annex III, para. II(2)(a)(iv).
72. This body is charged with examining the information on disputes relevant to a submission. See Rules of Procedure, Annex III, para. II(2)(b): "Consideration of any information regarding any disputes related to the submission, and decisions. . . as to whether to proceed with consideration of the submission, or part thereof, or not" may be deferred for "decisions to a subcommission in accordance with paragraph 7."
73. Rules of Procedure, Annex III, para. III(7) states, in seemingly mandatory wording, that "[t]he subcommission shall examine all information regarding any disputes related to the submission" and "[i]f necessary,... shall take action based on the procedures in Annex I to these rules." [Emphasis added.]
74. See Rules of Procedure, Annex III, para. 14 and Rule 53(1) of the Rules of Procedure.
75. See Report of the Secretary-General, Oceans and the Law of the Sea, U.N. Doc. A/57/57/Add.1, 8 October 2002, at para. 28 and 29 [Emphasis added], available at the Web site of the U.N. Division for Ocean Affairs and the Law of the Sea (DOALOS), at www.un.org/Depts/los/index.htm.
76. "Statement by the Chairman of the CLCS on the Progress of Work in the Commission," U.N. Doc.CLCS/48, Oct. 7, 2005, at para. 25, available at the CLCSWeb site, supra note 1. [Emphasis added.]
77. Ibid., at para. 26.
78. Ibid., at para. 31.
79. Ibid., at para. 32.
80. See Irish Exec1tive Summary, supra note 2, at 4.
81. "Statement by the Chairman of the [CLCS] on the Progress of Work in the Commission," U.N. Doc.CLCS/7, May 15, 1998, para. 5 [Emphasis added], available at the DOALOS Web site, supra note 70.
82. Oude Elferink, supra note 6, at 266.
83. "Letter dated 12 March," U.N. Doc. SPLOS/26 of Mar. 12, 1998, para. 5, available at the DOALOS Web site, supra note 70.
84. Oude Elferink, supra note 6, at 266.
85. Certainly the CLCS cannot be relied on to do a similar thing sua sponte. Note the complaint of Japan referring to former Rule 45 that the Russian submission did not make any reference to "disputes" in relation to the submission. Japan nonetheless merely requested the CLCS not to take any action which would prejudice the territorial dispute between itself and the Russian Federation. See "Japan's Position on the Submission Made by the Russian Federation [to the CLCS]"; Annex to Note verbale from the Secretary-General, of CLCS.01.2001.LOS/JPN,Mar. 14 2002, available at the CLCS Web site, supra note 1.
86. See also Oued Elferink, supra note 6, at 270: "the Russian Federation did not inform the CLCS of the existence of any dispute in the sense of Annex I." In fact the Russian delegate tried to deny any dispute was in issue by arguing that the dispute over the Kurile Islands was not involved because of the basepoints chosen.
87. See "Statement made by the Russian Federation to the Commission on 28 March 2002," U.N. Doc. CLCS/31, Apr. 5, 2002, at 6, available at the CLCS Web site, supra note 1. If the submitting state denies to the CLCS that there is a relevant dispute, it may be asked, to what extent does the CLCS have implicit powers to make its own assessment of such matters? See Elferink, supra note 6, at 276.
88. It is also curious that the green shading does not appear to cover the totality of the existing Icelandic designation to the west. It seems that this was done as a matter of deliberate policy and was not simply a case of bad printing. The same shading ambiguity applies to the Celtic Shelf area to the south of point FOS 60, as shaded red in the same map.
89. See supra note 64.
90. Rules of Procedure, Annex I, para. 5.
91. Report of the Secretary-General, Oct. 2002, supra note 70, para. 40. This CLCS recommendation has been interpreted as "overly cautious" by one commentator; and as indicating that "the CLCS considers that the existence of the territorial dispute between the Russian Federation and Japan excluded consideration of the outer limit of the continental shelf in the southern part of the Sea of Okhotsk," and that this was despite the fact that "the note verbale of Japan [gave] prior consent [to the CLCS] to consider the submission of the Russian Federation with respect to the Sea of Okhotsk."
92. Oued Elferink, supra note 6, at 273.
93. Id.
94. Rules of Procedure, Annex I, para. 3.
95. Report of the Secretary-General, Oct. 2002, supra note 70, para. 40 [Emphasis added.]
96. See Oude Elferink, supra note 6, at 267. There may, however, be possible disproportionate costs involved in the partial submission process when balanced against the future prospects of licensing revenue from active exploitation of the natural resources.
97. See supra note 61.
98. See "U.S. note verbale respecting the Russian Federation's submission," CLCS.01.2001.LOS/USA, Mar. 18, 2002, available at the CLCS Web site, supra note 1, and
99. see Oude Elferink, supra note 6, at 268, for mention of other types of disputes.
100. Oude Elferink, supra note 6, at 267. Reference to "included," rather than "excluded," might have been more apt terminology here.
101. Ibid., at 278-279, n.21.
102. See more generally, ibid., at 268-269. The dispute in the Hatton-Rockall area may apart from the natural prolongation argument, be seen in reality as not so much an outer limits one, but rather one which concerns the division of the respective boundaries within such notional limits.
103. The Irish prefatory phrase in its Executive Summary, supra note 2, at 4-5: ("[i]t is the view of Ireland") [Emphasis added] seems in fact to hint that Ireland was aware in advance of certain Danish and Icelandic reservations to its partial submission.
104. Oude Elferink, supra note 6, at 276.
105. Such agreement may, however, be difficult to attain if [neighboring] States have different views on the area of overlap of continental shelves or the area of relevance for the delimitation"; and in such cases other states may consider that a statement indicating consideration of the submission is without prejudice to their rights is not sufficient to fully protect these rights." Oude Elferink, supra note 6, at 267-268 and 276-267. With respect to a delayed submission consideration, present indications are that regarding the Hatton-Rockall dispute, despite several four-way meetings including two recently in Reykjavik and London, the disputants are no nearer to reaching any agreement on a joint submission; however, a joint approach may be possible farther south in the Celtic Sea area.