Accountability and the commission on the limits of the continental shelf: Deciding who owns the ocean floor

Cornell International Law Journal

Volumn 42, Issue 3, 2009, Pages 387-440

  Cavnar, Anna ^a  

^a New York ^*  (Italy)

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EID: 77950802788     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (499)

1. C.J. Chivers, Eyeing Future Wealth, Russians Phnt the Flag on the Arctic Seabed, Below the Pohr Cap, N.Y. TIMES, August 3, 2007, at A8.
2. See id. (describing interest of Canada, Denmark, Norway, Russia, and United States in claims to Arctic seabed).
3. See id. (quoting Canadian foreign minister, Peter MacKay, as saying, "You can't go around the world and just plant flags and say, 'We're claiming this territory.'"); Christian Wienberg, Denmark Class Russia's Flag Phnting at North Pole a 'Joke', BLOOMBERG, COM, Aug. 15, 2007, http://www.bloomberg.com/apps/news?pid=20601082&sid=anLc S7RZgqk4&refer=canada (quoting Danish Minister of Science and Technology, Helge Sander, as saying "I see the Russian summer stunt as a summer joke.").
4. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, available at http://www.un.org/Depts/los/convention-agreements/ texts/unclos/unclos-e.pdf [hereinafter UNCLOS] (entered into force Nov. 16,1994).
5. R.R. CHURCHILL & A.V. LOWE, THE LAW OF THE SEA 141 (3d ed. 1999).
6. Id.
7. Id.
8. Id.
9. Id. at 141-142
10. Id. at 142.
11. Id.
12. See UNCLOS, supra note 4.
13. Id. at art. 76(1).
14. CHURCHILL & LOWE, supra note 5, at 147-148
15. See UNCLOS, supra note 4, Part XI.
16. CHURCHILL & LOWE, supra note 5, at 148.
17. Id.
18. UNCLOS, supra note 4, art. 76(6).
19. See id. arts. 76(4)-(7).
20. See id.
21. Id. art. 76(8).
22. Id. Annex II, arts. 2-3. The CLCS consists of twenty-one experts, nominated by individual states but elected by aU parties, who serve renewable five-year terms. Id. Annex II, art. 2(1), (4). Nominating states are responsible for covering the costs of their Commissioner's participation in the CLCS.
23. Id. Annex II, art. 2(5).
24. Id. Annex II, art 8.
25. Id. art. 76(8).
26. David Malakoff, Nations Look for an Edge in Chiming Continental Shelves, 298 SCIENCE 1877, 1878 (2002).
27. See id. at 1878 (describing reaction of United States and other countries to Russian submission).
28. See U.N. Div. for Ocean Affairs and the Law of the Sea, Comm'n on the Limits of the Continental Shelf, Outer Limits of the Continental Shelf Beyond 200 Nautical Miles from the Baseline: Submissions to the Comm'n: Submission by the Russian Federation, http:/ /www.un.org/Depts/los/clcs-new/submissions-files/ submission-rus.htmn.org/Depts/los/clcs-new/submissions-files/submission-rus.htm (last visited December 21, 2009) [hereinafter Russhn Submission] (providing information regarding Russia's submission and response comments from five nations).
29. See Malakoff, supra note 25, at 1878.
30. See Drawing Lines in Melting Ice, THE ECONOMIST, Aug. 18, 2003 (stating Russia's deadline to make a claim is 2009).
31. See Chivers, supra note 1.
32. See U.N. Div. for Ocean Affairs and the Law of the Sea, Submissions, through the Sec'y-Gen. of the United Nations, to the Comm'n on the Limits of the Continental Shelf, Pursuant to Art. 76, Para. 8 of the United Nations Convention on the Law of the Sea of 10 Dec. 1982, http://www.un.org/Depts/los/ clcs-new/commission-submissions.htm [hereinafter CLCS Submissions] (last visited December 21, 2009) (listing all claims submitted to the CLCS as of October 30, 2009).
33. Press Release, Hon. Martin Ferguson, Austl. Minister for Res. and Energy, UN Confirms Australia's Rights Over Extra 2.5 Million Square Kilometres of Seabed, Apr. 21, 2008, available at http://minister.ret.gov.au/ TheHonMartinFergusonMP/Pages/UNCONFTRMSAUSTRALIA%E2%80%99SRIGHTSOVEREXTRA.aspx;
34. Press Release, Rt Hon. Helen Clark, UN Recognizes NZ's Extended Seabed Rights, Sept. 22, 2008, available at http://www.beehive.govt.nz/release/ un+recognises+nz+xtended+seabed+rights.
35. See Nathanial Gronewold, Seabed Chims Mount, Swamping U.N. Commission, N.Y. TIMES, May 14, 2009, available at http://www.nytimes.com/gwire/2009/05/14/ 14greenwire-seabed-claims-mount-swamping-un-commission-10572.html?pagewanted=l.
36. See Malakoff, supra note 25, at 1877.
37. See Ron Macnab, The Case for Transparency in the Delimitation of the Outer Continental Shelf in Accordance with UNCLOS Article 76, 35 OCEAN DEV. & INT'L L. 1, 12-13 (2004) (describing transparency problems that arise from CLCS confidentiality rules);
38. Malakoff, supra note 25, at 1878 (quoting officials discussing secrecy of CLCS process).
39. See Benedict Kingsbury et al., The Emergence of Global Administrative Law, 68 LAW & CONTEMP. PROBS. 15, 31-42 (2004-2005) (describing accountability mechanisms used in domestic systems and discussing their extension to international sphere).
40. See CHURCHILL & LOWE, supra note 5, at 142 (providing historical overview of development of law on state possession of continental shelf).
41. See id.
42. See id. at 142-143
43. United States: Prochmation by the President with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 40 AM. J. INT'L L. (SUPPLEMENT: OFFICIAL DOCUMENTS) 45, 45-48 (1946) [hereinafter Truman Prochmation] ("I, Harry S. Truman, President of the United States of America, do hereby proclaim . . . [that] the natural resources of the subsoil; and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.").
44. Id. at 45.
45. See North Sea Continental Shelf (F.R.G. v. Den; F.R.G. v. Neth.), 1969 LCJ. 3,22 (Feb. 20) (noting states exercise sovereign authority over their territory).
46. Truman Prochmation, supra note 41, at 46.
47. See CHURCHILL & LOWE, supra note 5, at 144 (describing claims after U.S. proclamation).
48. Convention on the Continental Shelf art. 2, Apr. 29, 1958, 499 U.N.T.S. 311. In 1958, states attempted to codify the law of the sea at the Geneva Conference on the Law of the Sea.
49. See CHURCHILL & LOWE, supra note 5, at 15 (describing work of the first United Nations Conference on the Law of the Sea). The Conference resulted in four Conventions, including the Continental Shelf Convention.
50. Id.
51. The Convention codified the Truman Proclamation approach to the continental shelf - that coastal states had sovereignty to explore and exploit the shelf s resources - a position the International Court of Justice found to be part of customary international law.
52. See id. at 7.
53. The Convention garnered enough ratifications to come into force in 1964. See International Law Commission, Law of the Sea: Régime of the Territorial Sea, http://untreaty.un.org/ilc/summa-ries/8-2.htm (last visited December 21,2009) (detailing history of codification of law of the sea, including Convention on the Continental Shelf).
54. See North Sea Continental Shelf, supra note 43, at 22 ("[T]he rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist... by virtue of its sovereignty over the land .... In short there, is here an inhere[n]t right");
55. see also. Convention on the Continental Shelf, supra note 46, art 2(3) ("The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.").
56. See CHURCHILL & LOWE, supra note 5, at 223-224 (discussing beginnings of seabed mining industry).
57. See id. at 224-28 (providing background on legal discussions over rights to deep seabed resources);
58. Johan Ludvik Lovald, In Search of an Ocean Regime: The Negothtions in the General Assembly's Seabed Committee 1968-1970, 29 INT'L ORG. 681, 681-682 (1975) (describing how new technologies have led to discovery of resources in the deep seabed).
59. See CHURCHILL & LOWE, supra note 5, at 225-27 (discussing differences between positions of developing and industrialized nations on seabed regulation); Seabed, 20 INT'L & COMP. L.Q. 583, 583-85 (1971) (announcing that UN General Assembly had adopted "Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil thereof, beyond the limits of National Jurisdiction," setting forth the "common heritage of mankind" principle).
60. See Lovald, supra note 49, at 682-83 (describing work at United Nations to define seabed as "common heritage of mankind");
61. Seabed, supra note 50, 583-585 (describing passage of UN Resolutions establishing "common heritage of mankind" principle and introducing idea of international seabed regime).
62. See 2 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY 829 (Satya N. Nadan et al. eds., 1993) [hereinafter UNCLOS COMMENTARY] (describing how imprecision of early claims made it impossible to define boundary between national jurisdiction and deep seabed).
63. See CHURCHILL & LOWE, supra note 5, at 146 (describing early practice of claiming extended shelf rights without defining outer limits);
64. UNCLOS COMMENTARY, supra note 52, at 493-495 (describing indefinite nature of early claims).
65. See UNCLOS COMMENTARY, supra note 52, at 829 (explaining how early claims over continental shelf were based on water depth and exploitability, not geologic or geomorphologie characteristics of shelf itself);
66. see generally David A. Colson, The Delimitation of the Outer Continental Shelf Between Neighboring States, 97 AM. J. INT'L L. 91 (2003) (describing how continental shelf as used in UNCLOS is legal concept not scientific one).
67. See UNCLOS COMMENTARY, supra note 52, at 829 (explaining that acceptance of CHM principle necessitates definition of limits of national jurisdiction over shelf); Nuno Marques Antunes & Fernando Maia Pimentel, Reflecting on the Legal-Technical Interface of Article 76 of the LOSC: Tentative Thoughts on Practical Implementation, 20 (presented at the ABLOS Conference Addressing Difficult Issues in UNCLOS, 2003), available at http://www.gmat.unsw.edu.au/ ablos/ABLOS03Folder/PAPER3-l.PDF (explaining that purpose of creating article 76 was to balance common heritage of mankind against coastal state shelf rights).
68. See EDWARD L. MILES, GLOBAL OCEAN POLITICS: The DECISION PROCESS AT THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA: 1973-1982, 3-7 (1998) (introducing UNCLOS negotiations and describing major issues under discussion, including deep seabed and continental shelf)
69. See Seabed, supra note 50, at 583-84 (describing provisions in UN resolutions on deep seabed calling for conference to create international seabed regime and codify other law of the sea issues). The agreement endured.
70. See UNCLOS, supra note 4, art. 77 (giving coastal states sovereign rights over shelf delineated under article 76), art. 136-137 (recognizing that rights to the deep seabed are invested in "mankind as a whole").
71. See MILES, supra note 56, at 128-129 (explaining that most states agreed on at least a 200 mile limit). In keeping with the understanding of the shelf as a legal, rather than scientific, concept, this definition did not depend on how far a state's continental shelf actuaUy physically extended - coastal states would have rights to all the seabed resources that fell within 200 nautical miles, even if, according to geology, some of that area was actuaUy part of the deep seabed. See Antunes & Pimentel, supra note 55, at 5 (describing how claims under article 76 may or may not match physical reality of continental margin).
72. See CHURCHILL & LOWE, supra note 5, at 148 (explaining that many nations, particularly those with narrow shelves, had an interest in maximizing area of CHM seabed).
73. See id. (explaining that states with wide shelves had interest in maximizing area of seabed widthin scope of national jurisdiction).
74. See MILES, supra note 56, at 129 (describing disagreement between wide-margin states and other delegations); UNCLOS COMMENTARY,
75. supra note 52, at 831 (explaining that states understood that negotiations would need to "balance the interests of States with narrow continental shelves or with no continental shelf, and those of states with broad shelves . . . .").
76. See UNCLOS COMMENTARY, supra note 52, at 831-33 (describing efforts of various factions of states to enhance their control over seabed resources); Robert Smith, The Continental Shelf Commission, in OCEANS POLICY: NEW INSTITUTIONS, CHALLENGES AND OPPORTUNITIES 135,135 (Myron H. Nordquist & John Norton Moore eds., 1999) [hereinafter OCEANS POLICY] (explaining that aU states have interest in article 76 regime).
77. See UNCLOS, supra note 4, art 77. This means that if, for example, an oil company from State A wanted to drill for oil in the shelf of State B, it would only be able to do with State B's permission and subject to State B's regulations; neither State A nor its oil company would have any say over whether and how it could access State B's oil. See id. If State B wanted to close off its shelf to aU other countries and exploit all the resources itself, neither State A nor anyone else could stop it from doing so.
78. See id.
79. See CHURCHILL & LOWE, supra note 5, at 148 (describing reluctance of widemargin states to give up control over resources beyond 200 nautical miles).
80. See Seabed, supra note 50, at 583 (describing incorporation of CHM principle in UN resolutions).
81. See UNCLOS, supra note 4, art. 82.
82. See id. Part XI; CHURCHILL & LOWE, supra note 5, at 239-248 (describing composition and function of International Seabed Authority).
83. See MILES, supra note 56, at 382 (explaining how countries with large oil and gas industries advocated for narrow shelf limits in order to maximize mining areas under deep seabed regime).
84. See UNCLOS COMMENTARY, supra note 52, at 844-46 (discussing interests of developing countries in constrained national jurisdiction over seabed);
85. CHURCHILL & LOWE, supra note 5, at 226-229 (describing movement by developing countries to create strong International Seabed Audiority to control deep seabed exploitation).
86. See, UNCLOS COMMENTARY, supra note 52, at 831 (describing need for compromise).
87. See id. at 868-72 (describing ninth and final round of negotiations); Robert W. Smith & George Taft, Legal Aspects of the Continental Shelf, in CONTINENTAL SHELF LIMITS: The SCIENTIFIC AND LEGAL INTERFACE 17, 17 (Peter J. Cook & Chris M. Carleton eds., 2000) [hereinafter CONTINENTAL SHELF LIMITS] (calling article 76 formula "complex, but workable").
88. UNCLOS, supra note 4, art. 76(1).
89. See infra notes 75-80 and accompanying text for further details.
90. UNCLOS, supra note 4, art 76, para. 3.
91. See id. art. 76. Article 76(1) establishes that states have a claim to the shelf up to 200 nautical miles or an extended claim beyond that; the rest of article 76 creates a formula for establishing limits for extended claims, but does not address basic claims of 200 nautical miles.
92. Id.
93. See also, CHURCHILL & LOWE, supra note 5, at 126 ("[A]reas of the seabed which he beyond the continental margin are included, so long as they are widthin 200 miles of the coast").
94. UNCLOS, supra note 4, art. 76(4)(a).
95. Id. art. 76(4)(b).
96. Id.
97. Id. art. 76(5);
98. see Philip AUott, Power Sharing in the Law of the Sea, 77 AM. J. INT'L L. 1, 18 (1983) (describing four potential cutoffs for continental shelf - 200 nautical miles, outer limits of continental margin, 350 nautical miles, or 100 nautical miles from 2,500 meter isobath).
99. See UNCLOS, supra note 4, art. 76 (article 76 provides measurement options but does not say that states have to choose one approach or another, thus aUowing states to combine measurements); see also International Law Association, Legal Issues of the Outer Continental Shelf, Res. 2/2006 (jun. 4-8, 2006), available at http://www.ila-hq.org/download.cfm/docid/02D8F8E8-DB56- 49D9-BlD780265535565E [hereinafter ILA Report] (stating that article 76 provides flexible formula). Having estabUshed the shelf s limits, UNCLOS goes on to divvy up rights to the resources found widthin it See UNCLOS, supra note 4, art 77. Article 77 gives coastal states unfettered rights to explore and exploit the natural resources within their continental shelves up to 200 nautical miles.
100. See id.
101. States with shelves beyond 200 miles still have complete audiority to explore and exploit natural resources, but must share profits derived from these activities with the international community by giving a percentage share to the ISA, which distributes the money to UNCLOS parties.
102. Id. art. 82.
103. See ILA Report, supra note 79, at 215 (revealing that the flexibility in article 76 formula is intended to allow states to maximize claims widthin established limits).
104. See L.D.M. Nelson, The Continental Shelf: Interplay of Law and Science, in 2 LIBER AMICORUM JUDGE SHIGERU ODA 1235, 1241-47 (Nisuke Ando, Edward McWhinney & Rüdiger Wolfrum eds., 2002) (describing difficulties arising from interpretation of article 76);
105. Richard Haworth, The Continental Shelf Commission, in OCEANS POLICY, supra note 62, at 147, 147-148 (describing some of the difficulties of determining limits through the article 76 process and stating "this is not very, very simple at all").
106. See Macnab, supra note 35, at 2 ("[T]he Article requires a series of technical procedures that are substantially more intricate than the determination of other types of maritime limit [sic] and which represent a significant departure from common boundary-making practice."). States construct territorial sea and EEZ limits by measuring out a set of latitudinal and longitudinal points that stretch twelve and 200 nautical miles, respectively, past their territorial sea baselines. UNCLOS, supra note 4, arts. 3,57, Territorial sea baselines either foUow the low-water line along a State's coast or are constructed dirough well-established procedures of connecting with straight lines certain points of latitude and longitude off the coast. Id. arts. 5, 7. States deposit charts or lists of geographical points mapping their baselines with the UN.
107. Id. art. 16.
108. For regular claims to the continental shelf - those not exceeding 200 nautical miles-states simply have jurisdiction over the portion of the shelf that falls widthin their EEZ.
109. See id. art. 76;
110. Victor Prescott, Resources of the Continental Margin and International Law, in CONTINENTAL SHELF LIMITS, supra note 71, at 64, 82. This process of establishing territorial, EEZ and regular continental shelf jurisdiction is fairly straight-forward - the boundaries are nothing more than a set of geographic points. It is also transparent - if one state wishes to question another's boundaries, it can consult a map or satellite image of that country's coast and determine whether the territory claimed is limited to twelve nautical miles.
111. See Macnab, supra note 35 at 2-9 (describing basic process of substantiating article 76 claim); Prescott, supra note 82, at 72 (explaining that data collection for some aspects of article 76 formula will be "a complex, lengthy, and probably expensive task");
112. see generally CONTINENTAL SHELF LIMITS, supra note 71 (providing detailed discussion of technical and scientific processes involved in article 76 claim).
113. See Colson, supra note 54, at 103-107 (showing how different measurement combinations can produce four different extended claims).
114. See Comm'n on the Limits of the Continental Shelf, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, para. 1.3, U.N. Doc. CLCS/11 (May 13,1999) [hereinafter CLCS Guidelines] (explaining that CLCS needed to create Technical Guidelines clarifying article 76's meaning because "Convention makes use of scientific terms in a legal context which at times departs significandy from accepted scientific definitions and terminology"); United States: President's Transmittal of the United Nations Convention of the Law of the Sea and the Agreement Relating to the Implementation of Part XI to the U.S. Senate with Commentary (Oct. 7,1994), reprinted in 34 I.L.M. 1393, 1426 (1995) [hereinafter U.S. Commentary] ("Although [article 76's] formula uses certain geological concepts as points of departure, its object is legal not scientific.");
115. see also, Antunes & Pimentel, supra note 55, at 5 ("Some scientific-technical terms incorporated in [the] provision have acquired a meaning that departs from their geo-scientific, ordinary meaning.").
116. See Antunes & Pimentel, supra note 55, at 2-4 (emphasizing that article 76 creates legal delineation process, even though it incorporates scientific and technical information).
117. See UNCLOS, supra note 4, art. 76;
118. Antunes & Pimentel, supra note 55, at 2-6 (discussing the dual technical-legal nature of article 76);
119. Colson, supra note 54, at 102 ("Article 76 provides ... new ... agreed categories of geological and geomorphological facts that are legaUy relevant for the purpose of determining tide to the outer continental shelf . . . .").
120. See UNCLOS, supra note 4, art. 76(1);
121. Antunes & Pimentel, supra note 55, at 6 (explaining how legal definition of continental margin used in article 76 could result in shelf claims that do not reach edge of continental rise or that stretch beyond it).
122. See generally Philip A. Symonds et al., Characteristics of Continental Margins, in CONTINENTAL SHELF LIMITS, supra note 71, at 25, 25-59 (describing how article 76 deals differendy with many aspects of continental margin than scientists and geologists).
123. D.M. JOHNSTON, THE THEORY AND HISTORY OF OCEAN BOUNDARY-MAKING 91 (1988).
124. See CLCS Guidelines, supra note 85, para. 1.3 (discussing how article 76's use of many terms leaves their meaning unclear);
125. Hawordi, supra note 81, at 148 ("[Calling article 76's terms] not clear is the gentlest of phrases that I can use.");
126. Macnab, supra note 35, at 2-10 (discussing many compUcations in article 76 formula);
127. Piers R. R. Gardiner, The Limits of the Area Beyond National Jurisdiction-Some Problems with Particuhr Reference to the Role of the Commission on the Limits of the Continental Shelf, in MARITIME BOUNDARIES AND OCEAN RESOURCES 65-68 (Gerald Blake ed., 1987) (discussing several problems that arise in interpreting article 76).
128. See Hawordi, supra note 81, at 148,150-51 (describing difficulties of measuring sediment wedge using article 76 formula);
129. Symonds et al., in CONTINENTAL SHELF LIMITS, supra note 89, at 56-59 (describing problems in measuring sediment thickness and how to measure 2,500 metre isobath).
130. See Antunes & Pimentel, supra note 55, at 19-21 (describing difficulty of determining original intent of states with regards to oceanic ridges);
131. Symonds et al., supra note 89, at 59 (describing potential for differences over how to address ridges under article 76).
132. See Antunes & Pimentel, supra note 55 at 13-18 (discussing complex legal and technical analyses that must go into interpreting foot-of-slope provision);
133. Hawordi, supra note 81, at 149-150 (discussing how article 76 fails to explain how states should measure the maximum gradient or determine slope's base).
134. See Hawordi, supra note 81, at 150.
135. See id. at 150-51.
136. See CLCS Guidelines, supra note 85, para. 1.3 (discussing how States will face interpretational chaUenges when creating claims);
137. Antunes & Pimentel, supra note 55, at 2-6 (discussing how article 76's mixed technical-legal nature requires using treaty interpretation to understand scientific and legal concepts)..
138. See Peter Prows, Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and What Is to Be Done About It), 42 TEX. INT'L LJ. 241, 269-285 (2007) (describing difficulties that many countries, especially developing ones, have with meeting the scientific and financial demands of article 76).
139. See Prescott, supra note 82, at 72 (stating that much of technical research required for article 76 process is expensive);
140. Prows, supra note 98, at 274 ("Given the training and expertise required, even a very small desktop study is likely to be quite expensive for a small country.").
141. See Allott, supra note 78, at 20 (discussing how parties knew that article 76 was complex and that all had an interest in its application).
142. See CHURCHILL & LOWE, supra note 5, at 149 (describing potential for disputes due to complexity of article 76 formula);
143. Allott, supra note 78, at 20;
144. Ted L. McDorman, The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World, 17 INT'L J. MARINE & COASTAL L. 301, 308 (2002) (stating that Commission's main concern should be whether state has made an exaggerated claim).
145. See Macnab, supra note 35, at 10-11 (describing how disputes could arise during article 76 delineation);
146. McDorman, supra note 101, at 319 (arguing that main purpose of CLCS is to legitimate boundaries provided by states in order to avoid disputes);
147. Shirley V. Scott, The Contribution of the LOS Convention Organizations to its Harmonious Implementation, in OCEAN MANAGEMENT IN THE 21ST CENTURY: INSTITUTIONAL FRAMEWORKS AND RESPONSES 321-325 (Alex G. Oude Elferink & Donald R. RoiweU eds., 2004) (discussing CLCS's role in preventing conflict over continental shelf claims).
148. See Scott, supra note 102, at 315-321 (discussing negotiations for dispute settlement mechanisms).
149. See id. at 321-327 (discussing creation and function of CLCS).
150. See U.S. Commentary, supra note 85, at 1428 (stating that United States should play a role in CLCS because it would help protect U.S. interests in its shelf while guarding against excessive claims by other states);
151. McDorman, supra note 101, at 308 (noting role of Commission in guarding against unwarranted claims).
152. See U.S. Commentary, supra note 85, at 1427 (explaining that CLCS is a mechanism to reduce uncertainty about limits and prevent disputes).
153. See Noel Newton St. Claver Francis, The Continental Shelf Commission, in OCEANS POLICY, supra note 62, at 141, 142-145
154. See UNCLOS, supra note 4, art. 76(8); Annex II, art. 8.
155. Id. art 76(8).
156. Id.
157. Id. Annex II art. 8.
158. See id. art. 76, Annex II;
159. see also, Gardiner, supra note 91, at 69-70 (discussing uncertainties that arise if country establishes boundaries that do not respect CLCS recommendations).
160. See, e.g., Nelson, supra note 81, at 1237-1247 (discussing the creation and role of CLCS).
161. See UNCLOS COMMENTARY, supra note 52, at 1012-13 (quoting the Canadian delegation arguing that CLCS could not infringe upon coastal state sovereignty by imposing boundaries that differed from article 76);
162. McDorman, supra note 101, at 313-314 (discussing implications of Canadian statement for interpreting mandate of Commission).
163. See UNCLOS COMMENTARY, supra note 52, at 1012-13;
164. McDorman, supra note 101, at 306 (discussing States' insistence that they, not the Commission, would ultimately declare limits under article 76);
165. Nelson, supra note 81, at 1239-1240 (describing debate during negotiations over whether Commission would infringe on sovereignty of coastal States).
166. See McDorman, supra note 101, at 313-314 (noting that several states raised concerns over possible infringements on national sovereignty).
167. See UNCLOS COMMENTARY, supra note 52, at 1012 (stating that Mongolia and other delegations argued that Commission needed to respect interests of "land-locked and geographically disadvantaged States").
168. See Gardiner, supra note 91, at 69 (describing how "ping-pong" process will work);
169. McDorman, supra note 101 at 306-307 (discussing "ping-pong" submission process).
170. See UNCLOS, supra note 4, at art. 76(8) (restricting the CLCS's role to "mak[ing] recommendations" to nations seeking to define their continental shelf).
171. See id. (noting the outer limits are "established by the coastal state");
172. McDorman, supra note 101, at 306 ("One certainty is that... the costal state ... has the legal capacity to set the state's outer limit....") (emphasis removed).
173. See UNCLOS, supra note 4, Annex II, art. 8.
174. See Gardiner, supra note 91, at 68-71 (describing role of Commission and pingpong process).
175. See, e.g., McDorman, supra note 101, at 319-321 In this influential and widely quoted article. Professor McDorman argues that the role of the Commission is simply procedural and informational. By requiring that states submit information to the Commission, article 76 creates a procedural hurdle to setting limits. It does not, however, specify what information a state should submit This, Professor McDorman argues, gives states wide latitude to decide how to approach the Commission process. After states submit whatever evidence they see fit Professor McDorman believes that the Commission's purpose is purely informational - it provides recommendations on how the state might improve its proposed boundaries, but has no audiority to demand that it make any specific changes to its proposals.
176. See id.
177. See Francis, supra note 107, at 141-42 (highlighting technical nature of CLCS's composition and role);
178. Alexei A. Zinchenko, Emerging Issues in the Work of the Commission on the Limits of the Continental Shelf, in LEGAL AND SCIENTIFIC ASPECTS OF CONTINENTAL SHELF LIMITS 225-226 (Myron H. Nordquist et al. eds., 2004) [hereinafter LEGAL AND SCIENTIFIC ASPECTS] (explaining that Commission is a "scientific organ" whose work depends on technical and scientific precision)
179. See Francis, supra note 107, at 141-142
180. See Zinchenko, supra note 124, at 225-226 (emphasizing that Commission focuses on scientific facts and working with States to determine mutually acceptable boundaries).
181. See supra Part LB.
182. See Antunes & Pimentel, supra note 55, at 2 (stating that importation of scientific terms to article 76 leaves meaning of many terms unclear);
183. Gudmundur Eiriksson, The Case of Disagreement Between a Coastal State and the Commission on the Limits of the Continental Shelf, in LEGAL AND SCIENTIFIC ASPECTS, supra note 124, at 251 (stating that many provisions of UNCLOS are unclear, including those related to CLCS);
184. Haworth, supra note 81, at 147-52 (indicating some of unclear terms that Commission will have to clarify in order to carry out its mandate);
185. Nelson, supra note 81, at 1241-1242 (stating that an essential element of Commission's work is interpreting article 76 to clarify ambiguous terms).
186. See Antunes & Pimentel, supra note 55, at 2-6 (noting article 76 is a legal provision and, thus, must be analyzed using principles of treaty interpretation).
187. See supra notes 85-104 and accompanying text (discussing technical-legal nature of article 76).
188. See CLCS Guidelines, supra note 85, paras. 1.1-1.5 (discussing the purpose of the Guidelines).
189. See McDorman, supra note 101, at 322-23 (taking issue with a number of positions Commission has expressed in Guidelines). For examples of varying interpretations of article 76,
190. see ILA Report, supra note 79 (providing interpretations of many of article 76's terms);
191. Antunes & Pimentel, supra note 55, at 10-29 (attempting to interpret provisions on meaning of continental shelf, measurement of isobaths and foot of continental margin, and ridge claims).
192. See CLCS Guidelines, supra note 85, para. 1.4 (explaining that Guidelines present only one possible interpretation of article 76 and that Commission will accept claims based on other legitimate interpretations, but encouraging states to use Guidelines in compiling claims).
193. Some states might follow the Guidelines to avoid antagonizing the Commission and smooth the approval process. For others, particularly developing countries, it will be easier and cheaper to use the Commission's work than to hire lawyers and technicians to analyze the article independendy.
194. See Nelson, supra note 81, at 1242.
195. See McDorman, supra note 101, at 319-321 (discussing how CLCS can shape location of final border through procedural role).
196. See id. at 306 (describing how ping-pong review process is supposed to reduce differences between state and Commission's positions until they concur).
197. See Zinchenko, supra note 124, at 225 (pointing out that article 76 permits state to stop making submissions to CLCS any time it wishes).
198. See id. at 225-26. Zinchenko, a Legal Officer in the UN Division of Ocean Affairs and the Law of the Sea and the Secretary of the CLCS, admits that states are free, if they wish, to discount the Commission or disengage from the ping-pong process. He argues, however, that "common sense" will keep states from doing so - without CLCS approval, they cannot establish final and binding outer limits.
199. See id.
200. See Nelson, supra note 81, at 1239-40 (arguing that Commission and states must reach accommodation on recommendations because neither can completely impose its wll on the process);
201. Zinchenko, supra note 124, at 225-26 (arguing that CLCS cannot be too deferential to State's proposed limits because it is required to ensure scientific and technical precision). Russia's reaction to the rejection of its proposals is an early indication that the Commission will have actual power to influence limits. It is unclear what Russia will propose when it finally makes a new submission, but the amount of time and effort it has put in to its second try indicate that it is taking the Commission's recommendations and role very seriously. Given how important the shelf claim is for Russia, the fact that it is willing to alter its position indicates that the Commission will wield actual power in the delineation process.
202. See Malakoff, supra note 25, at 1878 (describing Russia's reaction to CLCS's rejection of its submission);
203. Yuri Zarakhovich, Why Russia is Bailing Out Iceland, TIME, Oct. 13, 2008, http://www.time. com/time/world/article/0,8599,1849705,00.html (describing importance of offshore oil to Russia).
204. See ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 4 (1995) ("[A]s a general rule, states acknowledge an obligation to comply with the agreements they have signed."). The UNCLOS negotiating history also indicates that deference to wide-margin states is not necessarily article 76's paramount concern. Early versions of the article provided that states had to set boundaries "taking into account the Commission's recommendations;" this was later changed to the current language "on the basis of" - despite objections by some wide-margin states that the new phrasing gave the CLCS too much power and unfairly infringed on their sovereignty.
205. See Nelson, supra note 81, at 1239-40 (describing negotiating history and attempts by wide-margin States to maintain the old language). The fact that the stronger language stayed, despite these protests, suggests that negotiators intended the Commission to have influence over boundary placement.
206. Id. at 1240 (arguing that the language change indicates that states and Commission must reach accommodation on proposed limits).
207. As noted many times in this Article, article 76 only permits states who disagree with the Commission's recommendations to resubmit It never says what happens if the state and Commission are unable to reach agreement and the state attempts to set boundaries without the Commission's approval.
208. See McDorman, supra note 101, at 306.
209. See Eiriksson, supra note 128, at 255 (noting that there is no appeals body to check Commission's decisions or its adherence to UNCLOS provisions).
210. See Smith & Taft, supra note 71, at 20 (noting the ping-pong submission process could theoretically continue forever, seemingly eliminating the possibility of appeal).
211. See Eiriksson, supra note 128, at 257-60 (arguing that states can challenge each other's limits through third-party dispute settlement mechanisms); McDorman, supra note 101, at 317-19 (arguing that "final and binding" does not mean determinative for all States Parties to UNCLOS, so that states can challenge each other's boundaries through outside adjudicatory mechanisms, such as ITLOS or ICJ).
212. But see Smidi & Taft, supra note 71, at 20 (arguing that UNCLOS negotiators opted to exclude the Commission's determinations from third-party dispute settlement procedures).
213. See Eiriksson, supra note 128, at 257-260 (discussing how dispute resolution under third-party mechanism might proceed).
214. See id. at 258-259 (acknowledging that ITLOS would have great difficulty interpreting Commission's findings and that other avenues of dispute resolution may not be available).
215. See D.R. Rothwell, Building on the Strengths and Addressing the Challenges: The Role of Law of the Sea Institutions, 35 OCEAN DEV. & INT'L L. 131, 133 (2004) (arguing that Commission's quasi-judicial role will give it substantial influence on creation of maritime boundaries).
216. See id. at 133 (referring to CLCS process as "quasi-judicial").
217. See Antunes & Pimentel, supra note 55, at 8 (stating that Commission's mandate does not permit it to authoritatively interpret article 76 and impose its interpretation on states).
218. See McDorman, supra note 101, at 306 (noting that the ping-pong process should progressively reduce differences between positions of submitting state and CLCS).
219. See Antunes & Pimentel, supra note 55, at 8 (noting that role of CLCS is providing validity to state's unilateral action).
220. See McDorman, supra note 101, at 306.
221. As is probably obvious, the point of this Article is that the CLCS does not sufficiendy take into consideration all the interests and concerns it is supposed to - it is not sufficiendy accountable to UNCLOS parties.
222. See infra Part III.
223. See CLCS Submissions, supra note 31 (providing regularly updated list of current submissions). The parties to UNCLOS established a deadline for submissions of May, 2009.
224. See UNCLOS, Meeting of States Parties, 11th mtg., Decision Regarding the Date of Commencement of the Ten-Year Period for Making Submissions to the Commission on the Limits of the Continental Shelf Set Out in Article 4 or Annex II to the United Nations Convention on the Law of the Sea, U.N. Doc. SPLOS/72 (May 29, 2001) [hereinafter HA SPLOS]. Given the technical complexity and financial demands of putting together a submission, however, many countries pushed for an extension of that deadline, at least for developing countries.
225. See UNCLOS, Meeting of States Parties, 17th mtg., Report of the SeventeenA Meeting of States Parties, para. 71, U.N. Doc. SPLOS/164 (July16, 2007). At the 2008 SPLOS Meeting, States Parties reached a decision that permits states to satisfy the ten-year deadline by submitting preliminary findings on their outer limits, a description of the status of their progress, and an intended final submission date.
226. See UNCLOS, Meeting of States Parties, 18th mtg., Decision Regarding the Workload of the Commission on the Limits of the Continental Shelf and the Ability of States, Particuhrly Developing States, to Fulfill the Requirements of Article 4 of Annex II to the United Nations Convention on the Law of the Sea, as well as the Decision Contained in SPLOS/72, Paragraph (a), para. 1(a), U.N. Doc. SPLOS/183 (June 20, 2008).
227. See generally U.N. Div. for Ocean Affairs and the Law of the Sea, Chronohgical Lists of Ratifications, Accessions and Successions to the Convention and the Related Agreements as at 6 November, 2009, http:// www.un.org/Depts/los/reference-files/chronologi-cal-lists-of-ratifications.htm# ;http://www.un.org/Depts/los/reference-fües/chronological-lists-of- ratifications.htm# (last visited December 21, 2009) (providing list of all nations party to UNCLOS).
228. See Comm'n on the Limits of the Continental Shelf, Rules of Procedure of the Commission on the Limits of the Continental Shelf, U.N. Doc. CLCS/40/Rev.l (Apr. 17, 2008) [hereinafter Rules of Procedure].
229. See U.N. Div. for Ocean Affairs and the Law of the Sea, Commission on the Limits of the Continental Shelf: Selected Documents of the Commission, http://www.un.org/Depts/los/clcs-new/commission-documents.htm#Documents (providing access to the Commission's "basic documents").
230. See CLCS Guidelines, supra note 85, para. 2.2 (discussing test of appurtenance, dirough which a state seeks to demonstrate to CLCS that it is entitled to make a claim by proving that its continental margin physically extends beyond 200 nautical miles).
231. See generally id. (describing steps countries must take to establish article 76 claim).
232. See id. para. 1.2.
233. See Rules of Procedure, supra note 157, r. 45(a). The report cannot propose boundaries for areas where there is a dispute between states over boundary delineation, which often occur where states shelves overlap.
234. See id. r. 46(1); Annex I, art. 5(a).
235. Id. Annex II, arts. 2(1), 3(1). The Secretary-General and designated members of the Secretariat may also have access within the scope of the process.
236. See id. Annex II, art. 3(1).
237. See CLCS Submissions, supra note 31. There are several reasons states might make claims confidential. In compiling CLCS submissions, states gather a huge amount of new data that, when analyzed, may reveal the location of many important mineral and oil deposits.
238. See Zinchenko, supra note 124, at 227 (discussing states' proprietary interest in the information it collects). States do not want to release this data to the rest of the world before they have had a chance to assess exacdy what they have, what it might be worth, and how they want to regulate access.
239. See Hawordi, supra note 81, at 153 (describing interest of mining companies in confidentiality of seabed data). Further, if the data show significant deposits, other UNCLOS parties might try to challenge shelf boundaries, in an attempt to force the state to cede some of its wealth to the deep seabed regime. A submitting state may not want its neighbors to know its proposed limits for fear that they will spark a boundary dispute.
240. See id. This is certainly what motivated Russia to keep its claim secret.
241. See Sean D. Murphy, U.S. Reaction to Russhn Continental Shelf Claim, 96 AM. J. INT'L L. 969, 969-970 (2002) (describing U.S. protest that Russia's proposed Arctic boundaries might infringe on its own Arctic rights).
242. See CLCS Guidelines, supra note 85, para. 9.1.4 (describing contents of executive summary);
243. Rules of Procedure, supra note 157, r. 50 (stating that the U.N. SecretaryGeneral will prompdy make executive summary available to public).
244. See Rules of Procedure, supra note 157, r. 51.
245. See CLCS Submissions, supra note 31 (providing access to all submissions and comments);
246. see, e.g., UNCLOS, Meeting of State Parties, 12th mtg., Note Verbale Dated 25 February 2002 from the Permanent Representative of Japan to the United Nations Addressed to the Secretary-General of the United Nations, Regarding the Submission Made by the Russian Federation on 20 December 2001 to the Commission on the Limits of the Continental Shelf, Annex, para. 1, U.N. Doc. SPLOS/82 (Mar. 21, 2002) (disputing Russia's claim in "Four Islands" region);
247. Letter from Ann W. Patterson, U.S. Deputy Representative to the United Nations, to Nicolas Michel, U.N. Under-Secretary-General and Legal Counsel, Notification Regarding the Submission Made by Brazil to the Commission on the Limits of the Continental Shelf (Aug. 25, 2004), available at http://www.un.org/Depts/los/clcs-new/submissions-files/bra04/ clcs-02-2004-los-usatext.pdf [hereinafter Patterson Letter] (taking issue with Brazil's method of measuring sediment thickness in Vitoria-Trindade feature of its claim). Non-neighboring states may be interested in submissions for a variety of reasons. A number of countries, including the United States, Canada, Norway, the Russian Federation, and Japan, have developing deep-sea mining industries that are interested in carrying out operations in areas with significant mineral deposits.
248. See The Secretary-General, Report of the Secretary-General on the Oceans and the Law of the Sea, paras. 325-43, U.N. Doc. A/54/429 (Sept. 30,1999);
249. ALEXANDRA MERLE POST, DEEPSEA MINING AND THE LAW OF THE SEA (1983) (analyzing the difficulties of developing a comprehensive legal regime to govern deep sea mining, in part because of competing national interest);
250. Craig H. Allen, Protecting the Oceanic Gardens of Eden: International Law Issues in Deep-Sea Vent Resource Conservation and Management, 13 GEO. INT'L ENVTL. L. REV. 563, 578-79 (2001). These governments would be interested in monitoring the article 76 process and ensuring claims (other than their own) are not excessive. Powerful developing countries, such as China, India, South Africa and Brazil, are deeply committed to the Common Heritage of Mankind principle, a developing country initiative, and want to minimize infringements on the deep seabed.
251. See MILES, supra note 56, at 42 (discussing advocacy of G-77 countries for expansive international seabed regime). Finally, states that have or will make a submission want to verify that the Commission applies article 76 consistently across claims so that no state receives preferential treatment See Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, para. 12, U.N. Doc. CLCS/54 (Apr. 27, 2007) [hereinafter CLCS 19A Session Report] (discussing Brazil's comments to Commission regarding importance of consistent and fair application of criteria).
252. See Rules of Procedure, supra note 157, Annex III, Part II, para. 2.
253. See UNCLOS, supra note 4, Annex II, art. 5 (noting CLCS generally works through sub-commissions);
254. Rules of Procedure, supra note 157, Annex III, Part III, paras. 3, 5 (discussing sub-commission's examination of submission).
255. UNCLOS, supra note 4, Annex II, art. 5;
256. see Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, paras. 18-22 U.N. Doc. CLCS/42 (Sept. 14, 2004) [hereinafter CLCS 14A Session Report] (describing CLCS decision to use subcommission to examine Brazilian submission);
257. Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, paras. 12-20, U.N. Doc. CLCS/32 (Apr. 12, 2002) [hereinafter CLCS 10th Session Report] (describing CLCS decision to use subcommission to examine Russian submission and establishing rules for composition and function of sub-commission).
258. See CLCS 14A Session Report, supra note 170, at para. 17 (describing Commission decision to disregard U.S. comment on Brazil submission because Commission only obligated to consider comments related to boundary dispute between states with opposite or adjacent coasts).
259. See Rules of Procedure, supra note 157, Annex HI, Part VI, para. 15 (outlining subcommission's initial examination of a submission).
260. See id. Annex III, Part IV (describing sub-commission's main review process).
261. See id. Annex III, Part IV, para. 9(1) (stating the sub-commission will base its review on the Guidelines);
262. CLCS Guidelines, supra note 85, at paras. 1.1-1.3 (describing reason for and use of Technical and Scientific Guidelines).
263. See Rules of Procedure, supra note 157, r. 57; Annex III, Part IV, para. 10(l)-(2).
264. Id. Annex III, Part IV, para. 10(1).
265. Id. Annex III, Part IV, para. 10(3)-(4);
266. see also Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, para. 36, U.N. Doc. CLCS/50 (May 10, 2006) [hereinafter CLCS 17A Session Report] (describing amendment to Rules of Procedure to require meetings).
267. See Rules of Procedure, supra note 157, r. 52 (stating the coastal state must be invited to participate in "relevant proceedings");
268. Annex IH, Part VI, para. 15 (defining "relevant proceedings").
269. See id. Annex 111, Part V.
270. Id. Annex III, Part V, para. 12(4)-(6).
271. Id. r. 53(1).
272. See id. Annex III, Part VI, para. 15(1 bis.) (noting coastal state has opportunity to make presentation to Commission following the sub-commission's recommendations, after which the Commission will evaluate the recommendations privately); see also Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, paras. 18-27, U.N. Doc. CLCS/34 OuL 1, 2002) [hereinafter CLCS 11th Session Report] (recounting CLCS decision during consideration of Russian recommendations to not permit state to attend Commission meetings).
273. See Rules of Procedure, supra note 1578, r. 53(4)-(5).
274. See McDorman, supra note 101, at 306 (noting states and CLCS work together in ping-pong submission process).
275. See Rules of Procedure, supra note 157, r. 54(3) (directing the Secretary-General to give "due publicity" to the recommendations of the Commission). The Secretary-General must keep confidential information secret in accordance with the Rules.
276. See id. at Annex II, para. 3 (defining the circumstances under which confidential information may be distributed).
277. See CLCS Submissions, supra note 31 (showing CLCS adopted recommendations for claims submitted by Russia, Brazil, Australia, Ireland, New Zealand, a joint submission by several European nations, Norway, France, and Mexico).
278. See Malakoff, supra note 25, at 1878.
279. Id.
280. See New Zealand Ministry of Foreign Affairs & Trade, New Zealand's Continental Shelf and Maritime Boundaries, http://www.mfatgovt.nz/Treaties-and- International-Law/04-Law-of-the-Sea-and-Fisheries/NZ-Continental-Shelf-and- Maritime-Boundaries php (last visited December 21, 2009);
281. Stephen de Tarczynski, Australia: Diffident on UN Grant of Larger Continental Shelf, INTER PRESS SERVICE (May 14,2008), available at http://www.ipsnews.net/news.asp?idnews=42359.
282. See CLCS Submissions, supra note 31 (revealing sub-commissions are examining several claims);
283. Malakoff, supra note 25, at 1878 (stating Russia is studying the Commission's recommendations).
284. See UNCLOS, Meeting of States Parties, 17th mtg., Issues Related to the Workload of the Commission on the Limits of the Continental Shelf- Note by the Secretariat, U.N. Doc. SPLOS/157 (April 30, 2007) (discussing CLCS's unexpectedly heavy workload and several proposed solutions).
285. See Grant & Keohane, supra note 36, at 29-30 (describing growing concerns over accountability and democracy in international regimes).
286. See Kingsbury et al., supra note 37, at 31-42 (describing accountability mechanisms used in domestic systems and discussing their extension to international sphere).
287. See id. at 16 (discussing existence of accountability gaps in international institutions).
288. See id. at 27-29.
289. See id. at 42-51 (discussing normative arguments for global administrative law: intra-regime efficiency, protecting rights, and promoting democracy).
290. See id. at 28 (describing scope of global administrative law).
291. See, e.g., Macnab, supra note 35, at 2 (arguing that Commission's secrecy could complicate application of article 76);
292. Malakoff, supra note 25, at 1878 (stating that many outside experts question the Commission's reliance on secrecy in article 76 review);
293. Bernard H. Oxman, The Territorial Temptation: A Siren Song at Sea, 100 AM. J. INT'L L. 830, 838-839 (2006) (stating CLCS could benefit from more transparency).
294. But see Macnab, supra note 35 (arguing the CLCS should be more transparent). Ron Macnab, a Canadian geologist who has worked extensively on continental shelf issues, published the only in-depth analysis of any accountabUity aspects of the CLCS; most other articles focus on technical issues.
295. See CLCS 11th session Report, supra note 182, para. 38 (stating that Commission received observer status at SPLOS meetings, increasing interaction with States Parties other wise limited by lack of formal relationship with states);
296. Zinchenko, supra note 124, at 230 ("The Convention does not envisage that the Commission should report to any international organ . . . .").
297. Grant & Keohane, supra note 36, at 29.
298. See id.
299. See Richard B. Stewart, Accountability and the Discontents of Ghbalization: US and EU Models for Regulatory Governance, 1 (Sept. 20, 2006) (Discussion Draft, New York University Law School Hauser Colloquium on Globalization and its Discontents), available at http://www.iilj.org/courses/ documents/Stewart.Accountability9-20-06.pdf.
300. See Grant & Keohane, supra note 36 (using accountability to refer to broader global governance issues).
301. See Stewart, supra note 203, at 1 (stating these concepts are distinct governance mechanisms, radier than types of accountabUity mechanisms).
302. See id. at 4.
303. See id. at 1 (describing basic purpose of formal accountability mechanisms).
304. See id. at 9 (describing proposals to improve accountabUity in global organizations).
305. See, e.g., Grant & Keohane, supra note 36 (using accountabUity in the broad sense).
306. See Stewart, supra note 203, at 8-9 (describing how different types of mechanisms can be used to address responsiveness to affected interests and regulated decisionmaking).
307. See id. at 10 (stating that analysis should determine "who is accountable [to] whom for what, with what sanctions, and under what standards and procedures if any.").
308. See Grant & Keohane, supra note 36, at 42 ("[Holder of audiority] can be called to account by those who authorized them as weU as by those affected by them.").
309. North Sea Continental Shelf (F.R.G. v. Den; F.R.G. v. Neth.), 1969 I.C.J. 3, 22 (Feb. 20) (noting states exercise sovereign audiority over their territory).
310. See UNCLOS, supra note 4, art. 76.
311. See supra Part II.A.
312. See Stewart supra note 203, at 10 (describing accountability as a function of relationship between accountor and accountee).
313. See Kingsbury et al., supra note 37, at 46-48 (discussing rights protection as normative justification for global administrative law).
314. See Ofer Eldar, Reform of IMF Conditionality: A Proposal for Self-imposed Conditionality, 8 J. INT'L ECON. L. 509 (2005) (proposing new procedure for IMF lending to enhance transparency and accountabUity in IMF's use of conditionality).
315. See id. at 514.
316. See id. at 523-528 (discussing basic function and benefits of implementing proposed procedure).
317. See supra Part II.
318. Kingsbury et al., supra note 37, at 44.
319. See id. (stating international administrative organizations require normative procedures to ensure proper performance, though such mechanisms often function internally).
320. See id.
321. See supra Part II.
322. See Macnab, supra note 35, at 10 (noting CLCS must consider interests of three categories of parties: The submitting state, the CLCS, and other states).
323. See id. at 14 (arguing that greater transparency would "promote broad acceptance" of boundaries approved by the Commission).
324. See, e.g., Patterson Letter, supra note 167 (providing text of U.S. comment on Brazil proposal).
325. See generally CLCS Submissions, supra note 31 (providing access to comments on all current submissions).
326. See UNCLOS, Meeting of States Parties, 15th mtg., Report of the Fifteenth Meeting of States Parties, para. 74, U.N. Doc. SPLOS/135 (July 25, 2005) [hereinafter 15th SPLOS] (discussing concerns of states over CLCS procedures that restrict their access to meetings).
327. See Francis, supra note 107, at 144 (emphasizing importance of Commissioners avoiding influence of politics);
328. Malakoff, supra note 25, at 1878 (noting CLCS Chairman favored reducing secrecy in Commission). Academic and shelf experts have echoed this concern.
329. See, e.g., Macnab, supra note 35, at 2 (stating secrecy of Commission might generate problems in dealing with submissions);
330. Oxman, supra note 198, at 838-839 (noting potential advantages of increased transparency in Commission's work).
331. See supra Part II.B.
332. See Rules of Procedure, supra note 157, Annex III, Part VI, para. 15 (defining types of proceedings to which submitting state has right to attend).
333. See Macnab, supra note 35, at 11-12 (discussing confidential nature of CLCS work).
334. See U.N. Div. for Ocean Affairs and the Law of the Sea, Rules of Procedure of the Commission, http://www.un.org/Depts/los/clcs-new/commission- rules.htm (last visited Dec. 21, 2009) (discussing process of drafting the Rules of Procedure);
335. U.N. Div. for Ocean Affairs and the Law of the Sea, Scientific and Technical Guidelines, http://www.un. org/Depts/los/clcs-new/commission- guidelines.htm (last visited Dec. 21, 2009) (discussing process of drafting the Guidelines).
336. UNCLOS, supra note 4, Annex II, art. 2(1).
337. Id. Annex II, arts. 2(1)-(2), (4).
338. Id. Annex II, art. 2(1), (5).
339. See Rules of Procedure, supra note 157, rs. 2(1), 4(1), 7(4).
340. See id. Annex III, Part IV, para. 9(2) (noting sub-commissions generally function at UN Headquarters).
341. Most UN elections, including those for the CLCS, are a two-stage process. First, to ensure fair geographical representation, seats are divided up among the organization's five regional groups, each of which chooses a slate of candidates, often dirough procedures that have little to do with a candidate's merits.
342. See UNCLOS, Meeting of States Parties, 18th mtg., Decision on the Allocation of Seats on the Commission on the Limits of the Continental Shelf and the International Tribunal for the Law of the Sea, para. 2, U.N. Doc. SPLOS/182 (July 9, 2008) (allocating seats on Commission by region);
343. David M. Malone, Eyes on the Prize: The Quest for Nonpermanent Seats on the UN Security Council, 6 GLOBAL GOVERNANCE 3, 5 (2000) (explaining various regional selection procedures for Security Council seats). Second, the general membership (either the entire General Assembly or, in the case of the CLCS, all States Parties to UNCLOS) votes on the regional candidates. Ideally, the preUminary process produces an "agreed slate" - the exact number of candidates needed to fill the region's slots - and the general vote simply confirms the regional decision.
344. See Malone, supra at 5 (stating that Member States usually prefer "agreed slate"). When this does not happen, however, nominating countries engage in spirited electioneering to secure their nominee's seat, often resorting to vote trading, promises of aid, and "cult of personality" campaigns to win.
345. See id. at 12-17 (describing various tactics used to win Security Council seats).
346. See Malone, supra note 240, at 11-18 (describing how finances and political clout are key to winning UN elections).
347. See Francis, supra note 107, at 144 (commenting on importance of independence to CLCS work);
348. Macnab, supra note 35, at 11 (discussing importance of transparency to CLCS's mandate).
349. See McDorman, supra note 101, at 312 (discussing issues created by financial relationship between Commissioners and nominating states).
350. See Francis, supra note 107, at 144 (questioning whether Commissioners can be independent and unbiased if relying on support of nominating state).
351. Commentators have raised similar concerns about other international bodies. See, e.g., Lawrence O. Gostin, Meeting Basic Survival Needs of the World's Least Healthy People: Toward a Framework Convention on Global Health, 96 GEO. L.J. 331, 364 (2008) (observing considerable influence of wealthy nations in setting policy of health organizations).
352. During the early years of the Commission, the Commissioners regularly discussed the financial difficulties that developing states faced in sponsoring Commissioners and pressed UNCLOS Parties to create a trust fund to help defray these costs.
353. See, e.g., Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, paras. 5, 19, U.N. Doc. CLCS/18 (Sept. 3, 1999) [hereinafter CLCS 6th Session Report] (stating Commission discussed creation of trust to facilitate participation by developing countries).
354. UNCLOS, Meeting of States Parties, 10th mtg., Decision Regarding the Establishment of a Voluntary Trust Fund for the Purpose of the Commission on the Limits of the Continental Shelf, U.N. Doc. SPLOS/58 (June 6, 2000) [hereinafter 10th SPLOS Trust Fund Decision].
355. See CLCS 14th Session Report, supra note 170, para. 54 (discussing concerns of Commissioners that governments might not be able to finance stays for sub-commission meetings).
356. See supra notes 155-185 and accompanying text (discussing submission process).
357. See McDorman, supra note 101, at 306 (describing ping-pong process as one which narrows down differences between state and Commission interpretations).
358. Rules of Procedure, supra note 157, Annex III, Part VI, para. 15.
359. See id. Annex H, para. 4(1).
360. See Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, paras. 39-47, U.N. Doc. CLCS/48 (Oct. 7, 2005) [hereinafter CLCS 16th Session Report] (describing Commission discussion about complaints from some states, including Brazil, over exclusion from Commission meetings);
361. -15A SPLOS, supra note 229, para. 74 (discussing complaints from states that led to Commission discussion on state involvement in meetings).
362. See Rules of Procedure, supra note 157, Annex III, Part IV, para. 10(3)-(4);
363. see also, CLCS 17th Session Report, supra note 177, paras. 31-45 (discussing Commission's decision to amend Rules of Procedure).
364. See Rules of Procedure, supra note 157, Annex III, Part VI, para. 15(1 bis.);
365. see also, CLCS 17th Session Report, supra note 177, paras. 39-45 (discussing Commission's decision to amend Rules of Procedure).
366. See UNCLOS, Meeting of States Parties, 16th mtg., Report of the Sixteenth Meeting of States Parties, para. 82, U.N. Doc. SPLOS/148 (July 28, 2006) (reporting some states thanked Commission for amending Rules of Procedure to improve state access to Commission deliberations).
367. See id. (noting that some states did not believe that amendments fully addressed their concerns about exclusion from the Commission process). The amendment to the Rules of Procedure permitting a final presentation to the Commission explicitly states that the Commission and submitting state may not discuss the recommendations and that the Commission must deliberate on them in private.
368. Rules of Procedure, supra note 157, Annex III, Part IV, para. 15(1bis.);
369. see also, 15th SPLOS, supra note 229, para. 74 (discussing states' concerns over limited access to Commission meetings and potential inconsistencies in Rules of Procedure).
370. See Rules of Procedure, supra note 157, Annex II, para. 4(3).
371. See CLCS 19th Session Report, supra note 167, paras. 14-44 (giving procedural details of Commission's consideration of Brazil, Australia, New Zealand, and Norway's submissions but providing no details on content of discussions);
372. see also Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, paras. 19-44, U.N. Doc. CLCS/56 (Oct. 4, 2007) [hereinafter CLCS 20th Session Report] (giving perfunctory statements on Commission's consideration of several submissions);
373. CLCS 17th Session Report, supra note 177, paras. 29, 31-45 (stating Commission discussed issue of how to correcdy connect line of outer edge of continental margin to 200 nautical-mile line but providing no details of discussion, and recounting Commission's debate about amending Rules of Procedure but focusing on procedural issues and not in-depth discussion of Commissioners' positions and debate);
374. Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, paras. 14-16, U.N. Doc. CLCS/9 (Sept. 11, 1998) [hereinafter CLCS 4th Session Report] (stating that Commission deliberated on Scientific and Technical Guidelines but providing no details on deliberations);
375. Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, paras. 13-15, U.N. Doc. CLCS/7 (May 15, 1998) [hereinafter CLCS 3rd Session Report] (stating that Commission debated Rules of Procedure, but providing no information on content of debate).
376. See Rules of Procedure, supra note 157, Annex III, Part IV, paras. 10(3)-(4).
377. See id. Annex III, Part IV, para. 10(3). The Rules require that the meeting occur at an "advanced stage" of the process, but state that the sub-commission will present its views on "part or all" of the submission.
378. Id. This indicates that the sub-commission does not even need to have completed its deliberations before meeting with the state. In addition, the Rules state that the sub-commission will continue deliberations and draft its recommendations after meeting with the state.
379. See id. Annex III, Part IV, para. 10(5) (providing that the sub-commission will continue deliberations and draft recommendations after meeting with submitting state). Staging the meeting this way permits the subcommission to take into consideration the state's views when drafting the recommendations. This is important in terms of providing states increased access
380. See id.
381. Id. Annex III, Part V, para. 12(4).
382. See id. The Rules of Procedure simply say "rationale;" they do not elaborate on the meaning of the requirement.
383. See id.
384. See UNCLOS, supra note 4, Annex II, art 8.
385. See Rules of Procedure, supra note 157, Annex II, para. 4(1).
386. The Rules of Procedure do not include any provisions on non-submitting states' participation or responses to comments. In reports, the chairperson simply notes that the Commission received a comment and what it chose to do with it. See, e.g., CLCS 14th Session Report, supra note 170, paras. 16-17 (discussing U.S. comment sent to CLCS regarding Brazilian submission);
387. CLCS 10th Session Report, supra note 170, para. 10 (noting that Commission received comments on Russian submission, but never explaining whether Commission considered them).
388. See Rules of Procedure, supra note 157, Annex II.
389. See Russian Submission, supra note 27 (providing access to Russia's brief executive summary and supporting documents, as well as the comments of other nations). Few countries found this summary helpful;
390. see, e.g., Permanent Mission of Canada to the United Nations, Notification Regarding the Submission Made by the Russian Federation to the Commission on the Limits of the Continental Shelf, (Jan. 18, 2002), available at http://www.un.org/Depts/los/clcs-new/submissions-files/rus01/CLCS-01-2001-LOS- CANtext.pdf (stating that the Russian executive summary did not provide sufficient information for Canada to properly analyze the claim);
391. see also CLCS Submissions, supra note 31 (providing access to all current submissions, executive summaries, and comments).
392. See Rules of Procedure, supra note 157, r. 53(3) (directing CLCS to submit recommendations to UN Secretariat, which will transmit a copy to the submitting state).
393. See id. r. 54(3) (stating Secretary-General will give "due publicity" to the Commission's recommendations).
394. See supra notes 142-148 and accompanying text (discussing unique position of CLCS as only international body charged to review article 76 submissions).
395. See supra notes 81-104 (discussing article 76's technical and legal nature).
396. See supra notes 118-123 and accompanying text (discussing ping-pong review process).
397. See generally Macnab, supra note 35, 10-16 (discussing some potential problems associated with CLCS review process).
398. See supra notes 131-135 and accompanying text (providing general discussion of Guidelines).
399. See generally Rules of Procedure, supra note 157 (defining processes through which CLCS functions).
400. See Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, paras. 8-13, U.N. Doc. CLCS/1 (June 30, 1997) [hereinafter CLCS 1st Session Report] (explaining process dirough which Commission considered, amended, and adopted rules based on draft prepared by UN Secretariat);
401. United Nations Secretariat Commission on the Limits of the Continental Shelf: Its Functions and Scientific and Technical Needs in Assessing the Submission of a Coastal State, U.N. Doc. SPLOS/CLCS/INF/1 Oune 10, 1996) (providing Secretariat's initial assessment of Commission's needs).
402. See Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of the Work in the Commission, para. 11, U.N. Doc. CLCS/4 (Sept. 17, 1997) [here inafter CLCS 2nd Session Report] (noting Commission refrained from adopting Annex I to the Rules of Procedure until states considered it at a Meeting of States Parties).
403. CLCS 4th Session Report, supra note 259, paras. 18-20 (noting that Commission considered comments from states before formaUy adopting Rules);
404. CLCS 3rd Session Report, supra note 259, para. 15 (explaining that CLCS would forward parts of the Rules to states for comments, though not disclosing how the CLCS would consider such comments).
405. See CLCS 3rd Session Report, supra note 259, para. 10-13 (discussing decision to create an editorial committee, subdivided into drafting groups, to complete Guidelines).
406. See U.N. Div. for Oceans Affairs and the Law of the Sea, UNCLOS and the Delineation of the Continental Shelf: Opportunities and Challenges for States, http://www. un.org/Depts/los/clcs-new/documents/clcsopen.htm (last visited Dec. 21, 2009) (describing open meeting);
407. Comm'n on the Limits of the Continental Shelf, United Nations Convention on the Law of the Sea and the Delineation of the Continental Shelf: Opportunities and Challenges for States (Apr. 20, 2000), available at http://www.un.org/Depts/los/clcs-new/documents/CLCS-26.pdf (providing transcript of open meeting and presentation materials);
408. Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, paras. 4-6, U.N. Doc. CLCS/21 (May 5, 2000) [hereinafter CLCS 7th Session Report] (describing open meeting).
409. See CLCS 7th Session Report, supra note 281 (revealing that states were allowed to comment, but not addressing extent to which CLCS considered comments). The Commission formally adopted the Guidelines prior to the 2000 Open Meeting.
410. See Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, para. 14, U.N. Doc. CLCS/12 (May 18, 1999) [hereinafter CLCS 5th Session Report] (stating that Commission adopted Guidelines);
411. CLCS 6th Session Report, supra note 246, para. 9 (stating that Commission adopted Annexes II, III and IV of Guidelines).
412. The Guidelines are occasionally discussed at scientific conferences organized by governments and research institutes, and experts attending these meetings sometimes question or challenge aspects of the Guidelines.
413. See Antunes & Pimentel, supra note 55 at 7, 13-14 (describing two such incidents). It is possible that these discussions could inform or shape the Commission's interpretation of the Guidelines and article 76 in general.
414. See id. at 7 (describing how one exchange apparendy caused Commission to rewrite portion of Guidelines prior to adoption). This entire process is ad hoc, however, and there is neither any guarantee that the Commission will react to criticisms, nor any record of how it has dealt with past discussions. Further, attending a conference is expensive and many UNCLOS parties, particularly developing countries, may not be able to participate.
415. See CLCS 17th Session Report, supra note 177, paras. 31-45 (describing Commission's decision to introduce the late-stage meeting between the sub-commission and submitting states meeting and the final state presentation);
416. CLCS 16th Session Report, supra note 253, paras. 39-47 (discussing the Commission's decision to amend the Rules to permit states to attend sub-commission meetings the Commission deemed relevant).
417. See CLCS 16th Session Report, supra note 253, para. 42 (stating that some Commissioners objected to allowing greater state participation in the sub-commission process because it could endanger the Commission's impartiality);
418. Macnab, supra note 35, at 11 (discussing need for "objective" CLCS);
419. McDorman, supra note 101, at 311-313 (describing importance of Commission's independence from states).
420. See CLCS 16th Session Report, supra note 253, para. 42;
421. Francis, supra note 107, at 144 (discussing potential for State pressure to bias Commissioners' decision-making).
422. See Rules of Procedure, supra note 157, r. 42(1) (defining eligibility for membership on sub-commissions).
423. See supra notes 240-248 and accompanying text (discussing accountability issues arising from CLCS election process).
424. See Francis, supra note 107, at 144 (observing the dangerous influence of states' financial support of Commissioners).
425. UNCLOS lays out procedures for amendments in Articles 312 and 313.
426. See, UNCLOS, supra note 4, arts. 312-13. UNCLOS parties have also used less formal procedures for "re-interpreting" the Convention's terms, however, and it is possible that a similar approach could be used here.
427. See, e.g., 11th SPLOS, supra note 155 (reinterpreting UNCLOS to extend time limits).
428. See U.N. Div. for Ocean Affairs and the Law of the Sea, The Division for Ocean Affairs and the Law of the Sea, its Functions and Activities, http://www.un.org/Depts/los/doalos-activities/about-doalos.htm (last visited Dec. 21, 2009) (describing history and functions of DOALOS).
429. See id.
430. Reform along these lines is already under discussion amongst UNCLOS parties.
431. See CLCS 17th Session Report, supra note 177, at Annex (recommending adoption of resolution providing funding for CLCS from UN). As the number of submissions has increased, Commissioners have had to spend more time in New York and the costs of sponsoring a Commissioner have skyrocketed.
432. See id. Given this, many Commissioners have called parties to switch to a different funding scheme, in order to ensure participation of experts from the developing world.
433. See CLCS 20th Session Report, supra note 259, para. 51 (reporting that Commission reiterated to states importance of draft resolution discussed at 17th session);
434. CLCS 17th Session Report, supra note 177, at Annex.
435. See, e.g., 10th SPLOS Trust Fund Decision, supra note 247 (revealing the States Parties recommended the UN General Assembly establish a voluntary trust fund to enable developing states to participate).
436. See CLCS 14th Session Report, supra note 170, para. 54 (discussing Commissioners' concerns that costs might make it impossible for some Commissioners to participate in sub-commission process).
437. See Antunes & Pimentel, supra note 55, at 9 (explaining that CLCS must deal with technical and legal questions and noting that it would be helpful if the Commission included legal experts).
438. In its early years, the Commission faced many preliminary legal questions regarding article 76, including confidentiality of submissions and how to deal with disputes between states.
439. See CLCS 5th Session Report, supra note 282, para. 5 (stating that Commission requested and received a legal opinion from U.N. Legal Counsel on issue of confidentiality of submissions and Commission deliberations);
440. CLCS 3rd Session Report, supra note 259, para. 5 (discussing Commission's decision to forward to SPLOS question of submission where there was dispute between states);
441. CLCS 2nd Session Report, supra note 278, para. 12 (stating that Commission forwarded several questions to States Parties for discussion at SPLOS). In more recent years, the CLCS has continued to see the Legal Counsel's advice on broad article 76 questions.
442. See Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, para. 13, U.N. Doc. CLCS/44 (May 3, 2005) (stating that Commission forwarded to Legal Counsel question of whether states could provide additional information to Commission after making initial submission). The Commission is also permitted to seek outside legal advice for questions that arise while reviewing submissions, but it is not entirely clear from where it obtains this advice, as records of sub-commission meetings are non-existent or confidential.
443. See Rules of Procedure, supra note 157, r. 57 (stating that Commission can seek advice of outside specialists), Annex II, para. 4(1) (declaring that the deliberations of sub-commissions must remain confidential).
444. The Rules of Procedure permit the Commission to seek outside advice from specialists to e extent that doing so is "necessary" or "useful," presumably including legal advice. See Rules of Procedure, supra note 157, r. 57, Annex III, Part IV, para. 10(2) (allowing sub-commission members to request advice from outside experts on behalf of the Commission). The Commission has complete discretion to decide when to seek advice, however, and the Rules provide no guidelines on when or how it should do so.
445. See id.
446. See id. Annex II, para. 4 (imposing obligation to maintain confidentiality of all details discussed during deliberations).
447. See Prows, supra note 98, at 276 (noting CLCS confidentiality policies prevent states from learning from the submissions process of other states).
448. A number of experts have criticized or questioned the absence of lawyers on the Commission.
449. See, e.g., Antunes & Pimentel, supra note 55, at 9 (calling the Commission's lack of legal expertise "surprising").
450. See Rules of Procedure, supra note 157, Annex III, Part IV, para. 10(3).
451. See id.
452. See id. Annex III, Part VI, para. 15(1 bis.) (stating that the coastal state may present its views relating to the submission, but the Commission will not enter a dialogue).
453. See Macnab, supra note 35, at 14 ("Allowing third parties an opportunity to evaluate the factors that prompted approval or rejection of a given submission . . . should help promote broad acceptance of outer limits that survive the scrutiny of the CLCS.").
454. See Prows, supra note 98, at 275-276 n.232 (questioning why Commission believes it must maintain complete confidentiality).
455. See id.
456. See UNCLOS, supra note 4, art 244 (requiring states to make public all information gathered dirough marine scientific research);
457. Prows, supra note 98, at 275 n.232.
458. See Zinchenko, supra note 124, at 227-228
459. Id. at 228.
460. See generally Wenwei Guan, The Poverty of Intellectual Property Philosophy, 38 HONG KONG L.J. 359, 359-60 (2008) (providing a brief history of intellectual property law). The World Intellectual Property Organization (WIPO) maintains a comprehensive database of the intellectual property laws of more than 180 countries;
461. see World Intellectual Property Organization, Member States, http://www.wipo.int/members/en/ (last visited Dec. 21, 2009).
462. For example, the United States Congress has passed several statutes granting inteUectual property rights: The Copyright Act, which gives authors rights to their "original works of authorship fixed in any tangible medium of expression" 17 U.S.C. § 102 (2007);
463. the Lanham Act, which confers exclusive usage rights to any "word, name, symbol, or device ... used by a person ... to identify and distinguish his or her goods," also known as trademarks, 15 U.S.C. § 1127 (2007);
464. and the U.S. Patent Act, which grants ownership to anyone who "invents or discovers any new and useful process, machine, manufacture, or composition of matter," 35 U.S.C. §101 (2007). The World Trade Organization's (WTO) Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) requires WTO Members, of which there are currendy 153, to implement similar laws.
465. See World Trade Organization, Members and Observers, http://www.wto.org/ english/thewto-e/whatis-e/tif-e/org6e.htm (last visited Dec. 21, 2009);
466. Trade-Related Aspects of Intellectual Property Rights art. 41(1), Apr. 15, 1994, 1869 U.N.T.S. 299 [hereinafter TRIPS].
467. See, e.g., 35 U.S.C. §122(b)(1) (2007) ("[E]ach application for a patent shall be published . . . promptly after the expiration of a period of 18 months from the earliest filing date . . . .");
468. see generally Joel Reidenberg, The Rule of Intellectual Property Law in the Internet Economy, 44 Hous. L. REV. 1073, 1076-1077 (2007) (describing public function of intellectual property law as promoting creation and information dissemination).
469. See, e.g., TRIPS, supra note 312, art. 29 (requiring WTO Members to restrict patents to those who disclose invention such that "a person skilled in the art" could carry it out).
470. See, e.g., Berne Convention for the Protection of Literary and Artistic Work art. 2, Sept. 9, 1886, as last revised at Paris on July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221 (limiting copyright protection to published works).
471. See supra Part ILB.
472. See Comm'n on the Limits of the Continental Shelf, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, para. 8, U.N. Doc. CLCS/39 (Apr. 30, 2004) [hereinafter CLCS 13th Session Report] (introducing document addressing lessons learned based on experience with Russia's submission).
473. See supra Part II.
474. See CLCS Guidelines, supra note 85, para. 1.1 (noting the Guidelines "form the basis" of CLCS to prepare its recommendations).
475. Indeed, the Rules actually discourage Commissioners from becoming too responsive to any entity outside the Commission. See Rules of Procedure, supra note 157, r. 11 (stating that Commissioners must refrain from "seek[ing] or receivfing] instructions" from external actors).
476. See supra Part ILB (discussing article 76 review process).
477. See McDorman, supra note 101, at 306 (discussing importance of ping-pong review procedure);
478. Nelson, supra note 81, at 1250 (stating that Commission does not have audiority to submit recommendations to an outside legal body for review);
479. Zinchenko, supra note 124, at 225 (stating that Commission was never intended to be court of law).
480. See generally Antunes & Pimentel, supra note 55 (discussing technical and legal difficulties that arise when interpreting article 76);
481. Macnab, supra note 35 (describing problems arising from interpretation of article 76).
482. See McDorman, supra note 101, at 311 (noting Rules contemplated a "collaborative" working relationship between CLCS and states).
483. See generally Claudia Tobler, Note, The Standard of Judicial Review of Administrative Agencies in the U.S. and EU: Accountability and Reasonable Agency Action, 22 B.C. INT'L & COMP. L. REV. 213 (1999) (discussing how reasonableness standard functions in EU and U.S. administrative law).
484. The World Bank, Administrative and Civil Service Reform, http://web.worldbank. org/WBSITE/EXTERNAL/TOPICS/EXTPUBLICSECTORANDGOVERNANCE/ EXT ADMINISTRATIVEANDCIVILSERVICEREFORM/0,contentMDK:20132482-menuPK:18 28771-pagePK:148956-piPK:216618-theSitePK:286367,00.html (last visited Dec. 21, 2009) (documenting a huge variety of administrative law reforms taking place in developing countries).
485. Id.
486. See Kevin E. Davis & Michael J. Trebilcock, Legal Reforms and Devehpment, 22 THIRD WORLD Q. 21, 30-32 (2001) (discussing how administrative law reforms in a variety of countries have been successful in promoting development);
487. Kingsbury et al., supra note 37, at 37 (discussing how reforms promoted by World Bank and International Monetary Fund have led many countries to adopt domestic administrative law reforms or regulations);
488. Richard A. Posner, Creating a Legal Framework for Economic Development, 13 WORLD BANK RES. OBSERVER 1, 3-9 (1998) (discussing movement for legal reform, including administrative law reform, to promote economic development);
489. see, e.g., United States-Korea Free Trade Agreement, U.S.-S. Korea, ch. XXI, arts. 21.1-21.4, June 30, 2007, pending Congressional approval, available at http://www. ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final- text (mandating notice-and-comment rulemaking and judicial review);
490. North America Free Trade Agreement, U.S.-Can.-Mex., Part VII, arts. 1802-05, Dec. 8, 1993, 32 I.L.M. 289 (requiring all NAFTA parties to put in place notice-and-comment rulemaking and judicial review of administrative decisions);
491. The World Bank, supra note 326.
492. See Kingsbury et al., supra note 37, at 37-41 (describing measures implemented in a wide variety of international institutions);
493. see, e.g., David Zaring, Informal Procedure, Hard and Soft, in International Administration, 5 CHI. J. INT'L L. 547 (2005) (examining proceduralization in two international financial regulatory organizations).
494. See Joint Food and Agric Org./World Health Org. Food Standards Programme, Codex Alimentarius Comm'n, Report of the Fifty-First (Extraordinary) Session of the Executive Committee of the Codex Alimentarius Commisswn, paras. 24-25, ALINORM 03/25/2 (Feb. 11, 2003);
495. Eyal Benvenisti, The Interplay Between Actors as a Determinant of the Evolution of Administrative Law in International Institutions, 68 LAW & CONTEMP. PROBS. 319, 323 (2005) (describing different actors who have pushed for administrative law reforms);
496. DEMANDING ACCOUNTABILITY: CIVIL-SOCIETY CLAIMS AND THE WORLD BANK INSPECTION PANEL (Dana Clark et al. eds., 2003) (describing international advocacy campaign that led World Bank to adopt its Inspection Panel, which provides a complaint and review process for individuals and communities affected by Bank projects).
497. See GLOBAL ADMINISTRATIVE LAW: CASES, MATERIALS, ISSUES 67-76, 129-132 (Sabino Cassese et al. eds., Institute for International Law and Justice, 2d ed. 2008) (discussing how administrative law mechanisms work in organizations that work in each of these areas).
498. Richard Stewart, one of the originators of the discipline of global administrative law, has also made this point.
499. See Richard B. Stewart, U.S. Administrative Law: A Model for Global Administrative Law?, 68 LAW & CONTEMP. PROBS. 63, 65-66 (2005) (discussing international regulatory cooperation).