The Delimitation of Outer Continental Shelf Areas: A Critical Analysis of Courts’ and Tribunals’ Heterogeneous Approaches

A number of maritime delimitation disputes, the resolution of which has
been referred to international courts or tribunals, include overlapping outer con
tinental shelf claims without relevant recommendations from the Commission on the Limits of the Continental Shelf (CLCS)insupportoftheclaimedentitle
ments. The case law of courts and tribunals regardingtheexerciseofjurisdiction
over such disputes has developed and appears now somewhat crystallized in a
common understanding. Yet numerous uncertainties remain, which have arisen
from the non-homogeneous approaches that underlie the decisions of courts and tribunals to exercise jurisdiction in the absence of recommendations from the CLCS. While courts and tribunals share the view that delimitation necessarily
requires a prior determination of entitlement, differences appear in defining the
threshold for ascertaining such a determination. In any event, treating submis
sions to delimit such claimed overlaps as admissible in the absence of recommen
dations from the CLCS may entail significant risks. Where a plea is considered
admissible, a court or tribunal will not have unfettered discretion as to whether
to exercisejurisdiction. Thismayresultin unfortunate situations as it cannot be
assumedthattheCLCSwillacceptcoastal states’ proposed outer limits of the conti
nental shelf.