The process of establishing the outer limits of the continental shelf beyond 200 nautical miles involves four steps.
(i) Step One: The coastal State is to initially delineate the outer limits of its continental shelf in conformity with criteria set out in Article 76 of the LOSC.
(ii) Step Two: The coastal State is to submit information on the limits to the CLCS within ten years of the entry into force of the LOSC for that State. A submission by a coastal State is examined by a sub-commission which is composed of seven members of the Commission, and, next, the sub-commission submits its recommendation to the Commission.
The representatives of the coastal State which made a submission to the Commission may participate in the relevant proceedings without the right to vote pursuant to Article 5 of Annex II. Approval by the Commission of the recommendations of the sub-commission is by a majority of two-thirds of Commission members present and voting pursuant to Article 6(2) of Annex II. The recommendations of the Commission are to be submitted in writing to the coastal State which made the submission and to the UN Secretary-General in accordance with Article 6(3) of Annex II. The LOSC contains no rule concerning public access to the information submitted to the Commission. Nor is there any provision with regard to the public promulgation of the recommendations of the Commission. However, the executive summary of a submission to the Commission is public pursuant to Rule 50 of the Rules of Procedure, and third States have been allowed to make observations on submissions to the Commission.
(iii) Step Three: The coastal State is to establish the outer limits of its continental shelf on the basis of the recommendations of the Commission. Where the coastal State disagrees with the recommendations of the Commission, the State is to make a revised or new submission to the Commission in accordance with Article 8 of Annex II of the LOSC. Under Article 76(8) of the LOSC, the limits of the continental shelf established by a coastal State on the basis of the recommendations of the Commission shall be final and binding. This provision requires two brief comments.
First, strictly speaking, what is final and binding is the outer limits established by a coastal State on the basis of the Commission’s recommendations, not the recommendations themselves. Second, Article 76(8), along with Article 7 of Annex II, appears to indicate that the coastal State cannot establish outer limits of the continental shelf on the basis of information that has not been considered by the Commission. Yet the Commission is not empowered to assess whether a coastal State has established the outer limits of the continental shelf on the basis of its recommendations. It seems that the outer limits of the continental shelf which have not been established on the basis of the recommendations of the Commission will not become binding on other States.
(iv) Step Four: Under Article 76(9), the coastal State is to deposit with the UN Secretary General charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General is to give due publicity thereto. Article 84(2) requires the coastal State to give due publicity to charts or lists of geographical coordinates and deposit a copy of each such chart or list with the UN Secretary-General and, in the case of those showing the outer limit lines of the continental shelf, the Secretary-General of the International Seabed Authority.
To date, the CLCS had received some eighty-four full or partial information on the outer limits of the continental shelf beyond 200 nautical miles. A question that may arise is whether or not non-State Parties to the LOSC may unilaterally define the outer limits of the continental shelf beyond 200 nautical miles. In this regard, in his statement at the final session of UNCLOS III, Tommy Koh, the President of the Conference, claimed that ‘a state which is not a party to this Convention cannot invoke the benefits of Article 76’. In fact, Article 4 of Annex II sets out a time limit for submissions of ten years after entry into force of the LOSC. This provision would seem to exclude the possibility of submission by a non Party to the Convention. As Judge ad hoc Cot stated in his declaration to the 2012 Nicaragua/Colombia judgment, it is difficult to regard Article 76(8) of the LOSC as an expression of customary law since the provision institutes a specific procedure which is not accessible to non-States Parties to the Convention. In reality, it seems debatable whether the CLCS would consider a submission of information on the outer limits of the continental shelf from a non-State Party to the Convention. It must also be noted that Article 76 is linked to Article 82 with regard to revenue sharing. The claim over the continental shelf beyond 200 nautical miles without the acceptance of the obligation with regard to revenue sharing should not be assumed. Hence there may be room for the view that the outer limits of the continental shelf unilaterally established by non-States Parties lack legitimacy because the limits have not been established through an internationally accepted procedure.
A further issue involves peaceful settlement of disputes concerning the interpretation and application of Article 76 of the LOSC. Other States Parties may be considered to have a legal interest in the outer limits of the continental shelf beyond 200 nautical miles. For instance, it may be argued that a State Party which undertakes the exploration and exploitation of resources in the Area has a legal interest in the outer limits of the continental shelf beyond 200 nautical miles. Accordingly, it seems possible that other States may challenge the validity of the outer limits of the continental shelf concerned. There is no reference to such disputes under section 3 of Part XV which provides for limitations and exceptions to the compulsory procedures of dispute settlement. Thus, disputes involving the outer limits of the continental shelf beyond 200 nautical miles can, if necessary, be settled by recourse to the compulsory procedures of Part XV.