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ARTICLE
Dispute settlement in the law of the sea, the
extendedcontinental shelf in the Bay of Bengal and the CLCS:some
preliminary observations on the basis of the caseBangladesh/Myanmar
before the InternationalTribunal for the Law of the Sea
Ioannis Konstantinidis
Published online: 4 November 2010
Aegean Institute of the Law of the Sea and Maritime Law 2010
Abstract On the basis of the maritime boundary dispute between
Bangladesh andMyanmar in the Bay of Bengal, the scope of this
article is to briefly describe
the relative procedures provided by the United Nations
Convention on the Law of
the Sea Part XV and to analyse an important part of this dispute
concerning the
delimitation of the outer continental shelf. Following this
reasoning, a special ref-
erence is made to the Commission on the limits of the
continental shelf, to which
Myanmar submitted all information and data for its continental
shelf beyond
200 nautical miles in the Bay of Bengal.
Keywords Law of the sea dispute settlement Extended/outer
continental shelf ITLOS Bay of Bengal
Resume Sur la base du differend maritime entre le Bangladesh et
le Myanmardans le golfe du Bengale, cet article vise a` rappeler
brie`vement les procedures
pertinentes prevues par la Convention des Nations Unies sur le
Droit de la Mer/
Partie XV et de mettre en exergue un aspect delicat de ce
differend, a` savoir la
delimitation du plateau continental au-dela` de 200 milles
marins. Ensuite, nous
rappelons les fonctions et le role de la Commission des limites
du plateau conti-
nental, a` laquelle le Myanmar a fait sa demande en fournissant
toutes les infor-
mations et les coordonnees de son plateau continental etendu
dans le golfe du
Bengale.
Mots cles Re`glement des differends en droit de la mer Plateau
continental etendu TIDM Golfe du Bengale
I. Konstantinidis (&)Ecole de Droit de la Sorbonne/Sorbonne
Law School, Centre dEtude et de Recherche en droit
international, University of Paris 1 Pantheon Sorbonne, Paris,
France
e-mail: [email protected];
[email protected]
123
Aegean Rev Law Sea (2011) 1:267285
DOI 10.1007/s12180-010-0015-1
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1 Dispute settlement under the United Nations Convention on the
Lawof the Sea (UNCLOS): the option of the International Tribunalfor
the Law of the Sea (ITLOS)a brief historic approach
A variety of international courts and tribunals are now
available to address a wide
range of international disputes. One such court is the ITLOS in
Hamburg, Germany.1
This specialised tribunal was created by the UNCLOS2 and is a
part of its
compulsory third-party dispute settlement system. The ITLOS and
the Conventions
other dispute settlement mechanisms have only recently become
available because of
the fact that the Convention entered into force in November
1994.3
The creation of ITLOS was controversial.4 Many people worried
that the ITLOS
might contribute to divergent jurisprudence,5 having in mind
that the International
Court of Justice (ICJ) and other law of the sea dispute
settlement fora have
considerable experience in deciding law of the sea cases.6
Proponents of the ITLOS
argue that the quick and efficient justice provided, along with
judges with law of the
sea expertise, make the creation of the ITLOS worthwhile. In
addition, they
accentuate that the ITLOS can handle cases involving states, but
also international
organisations, individuals and corporations.7
The ITLOSs primary responsibility is to interpret and apply the
1982 UNCLOS.
However, the issues it may address and the role it may fulfil,
vary. The law of the
sea comprises rules governing a wide range of issues, such as
zones of coastal state
jurisdiction, navigation, maritime boundary delimitation,
fisheries, the marine
environment, marine scientific research and mining of the
continental shelf and the
deep seabed. Some of these rules are old, some were created
during the negotiations
of UNCLOS and some have been developed later. The oceans law
regimes are not
isolated, but are linked to the Law of the Sea Convention, to
various international
institutions, and to international law norms and compliance
mechanisms
1.1 The UNCLOS
The 1982 UNCLOS contains wide-ranging provisions on dispute
settlement. Any
State Party to the Convention or, under certain circumstances,
another entity may
have recourse to an international tribunal to obtain a legally
binding decision,
concerning a dispute related to the interpretation or
application of the Convention or
certain other international agreements. Although the Convention
contemplates that
1 For more information about the ITLOS, see http://www.itlos.org
(last visited on 27 February 2010).2 The UNCLOS was signed on 10
December 1982 (Montego Bay, Jamaica) and entered into force on
16
November 1994, according to Article 308(1).3 The UNCLOS is now
being implemented together with the Agreement relating to the
Implementation
of the Part XI of the Convention of 1982. This agreement
modifies some of the institutional and technical
features of the regime for mining the seabed. For an analysis of
the 1994 Agreement, see Oxman (1999,
pp. 1535) and Gautier (1995, pp. 5677).4 See Queneudec (2002,
pp. 621632).5 See Boyle (1997, pp. 3754).6 See Charney (1996, pp.
6975).7 See Treves (2000, pp. 726746) and Treves (2005, pp.
939).
268 I. Konstantinidis
123
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some disputes may be taken before previously existing bodies, it
also provides for
new third-party tribunals, such as the ITLOS. The jurisdiction
of any international
court of tribunal over a dispute rests eventually on the consent
of the parties
involved. Acceptance of the Convention expresses that consent
for state parties.
Why would states mutually consent to the jurisdiction of an
international court or
tribunal before a dispute arose? In order to respond to this
question, we have to
understand the negotiating context of the Conventions dispute
settlement provi-
sions. The Convention was negotiated during a time of
considerable confusion in
ocean-related disputed. The capacity to harvest non-living and
living resources was
increased by the technological developments. Consequently, more
maritime
boundaries disputes arose. Some developing states tried to
assert sovereignty over
broad coastal zones. Maritime powers, on the other hand, sought
to safeguard
passage through straits and other navigational freedoms. In
addition, there was a
disagreement as how to address other issues, such as the marine
environment,
marine scientific research and of course the regime for the
mining of the seabed
beyond national jurisdiction.
Negotiations leading to the United Nations Convention on the Law
of the Sea
involved more that 150 states and lasted for 9 years.8 Many
negotiators thought that
compulsory dispute settlement mechanisms could strengthen the
compromises
embodied in the Law of the Sea Convention. Some developing
states believed that
including third-party dispute settlement provisions would
counterbalance political
and economic pressure from power states. UN officials also
favoured strong dispute
settlement provisions, alleging that this could maintain the
integrity of the
Conventions compromise package deal.9 According to H.S.
Amerasinghe,
President of UNCLOS III (Third United Nations Conference on the
Law of the Sea),
the provision of effective dispute settlement procedures is
essential for stabilizingand maintaining the compromise necessary
for the attainment of agreement of theconventionabsent such
procedures, the compromise will disintegrate rapidly
andpermanently.10
On the contrary, many states were sceptic about including
provisions for
obligatory binding, third-party dispute settlement. Developing
states distrusted the
ICJ throughout the 1970s because they believed that it favoured
developed states.
Socialist states questioned the need for third-party tribunals
that had the authority to
issue binding decisions.
Another issue during UNCLOS III concerned the management of
mineral
resources in the Area.11 In the Convention, the Area and its
resources are referred as
the common heritage of mankind. The regime for seabed mining
contained in
Part XI Implementation Agreement, has provisions on third-party
dispute settlement
that are principally separated from those applicable in other
issues.
8 For studies of the UNCLOS III negotiations, see Sanger (1986)
and Miles (1998).9 For accounts of the negotiating history of the
Conventions dispute settlement provisions, see Adede
(1987).10 Memorandum by the President of the Conference on
Document A/CONF.62/WP.9, U.N. DocA/CONF.62/WP.9/Add.1 (1976).11 See
Dupuy (1985, pp. 499505) and Jagota (1991, pp. 9771011).
Dispute settlement in the law of the sea 269
123
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The ITLOS became operational after the Convention entered into
force.
Although the Convention attracted 159 signatories upon
conclusion of UNCLOS
III in 1982, the Convention did not gain sufficient ratification
to enter into force
until November 14, 1994. Between 1982 and 1994, many developed
states did not
accept the Convention mainly because of concerns about the Part
XI seabed-mining
regime. The Implementation Agreement, which is to be interpreted
together with the
Convention as a single instrument, moderated the concerns of
most developed
states. The Convention, as modified by the 1994 Agreement, has
now been accepted
by most of the developing and developed states. The dispute
settlement provisions
posed no obstacle to states acceptance of the Convention and
have gathered
favourable comments by national officials.
1.2 UNCLOS Part XV: the choice of third-party fora and
obligatory jurisdiction
to render binding decisions
Before analysing some parts of the Law of the Sea Conventions
third-party
dispute settlement system, it is important to place the system
in the Conventions
general dispute settlement provisions, contained in Section 1,
Part XV of the
Convention. According to Article 279, states are obliged to
settle any dispute
between them concerning the interpretation or application of the
Convention by
peaceful means in accordance with Article 2(3) of the UN
Charter,12 and to
seek a solution by the means indicated in Article 33(1) of the
Charter. Article
283 explicitly requires States Parties to exchange views as for
the settlement of
disputes by negotiation or other peaceful means. The Convention
accords primacy
to informal dispute settlement mechanisms, reflecting the
reality of interstate
diplomatic practice.
If negotiation or other mechanisms contained in Section 1 of
Part XV of the
Convention fail to settle the dispute, parties may choose among
several third-party
tribunals under Section 2 of Part XV. According to Article 287,
States Parties may
choose between four fora: the ITLOS, the ICJ, arbitration, or
special arbitration
before panel of experts (in cases involving fisheries,
protection of the environment,
marine scientific research and navigation). States may declare
their preferred option
at any time.13
It is obvious that Article 287 gives a sort of flexibility and
derived from states
inability during UNCLOS III to come to an agreement on a single
third-party forum.Some states were in favour of the ICJ. They
sustained that its docket was not overly
full and that it had dealt with success many law of the sea
cases. In addition, they
accentuated that a potential proliferation of international
tribunals might be a danger
for a non-uniform jurisprudence on the law of the sea issues. A
number of states
favoured arbitration, noting that arbitral tribunals could
conduct their business
expeditiously. Another group of states pleaded in favour of
special arbitration. They
underlined the technical nature of many law of the sea disputes
and supported that
12 See Koroma (1996, pp. 227236) and Brownlie (2009, pp.
267283).13 See Vukas (2004a, pp. 318322).
270 I. Konstantinidis
123
-
experts nominated by technically competent international
organisation, such as the
International Maritime Organization, should be the final
decision makers. Many
remaining states were in favour of the establishment of a new
law of the sea
tribunal. Many developing states considered the ICJ conservative
and unrepresen-
tative as its jurisdiction extends only to states.
The option of choosing a third-party forum is even wider than
Article 287suggests. Under Article 282, parties to a dispute may
refer the dispute to a third-
party tribunal other than the four mentioned in Article 287,
such as an ad hoc
tribunal with a number of arbitrators different from the five
specified in the
Convention. As Article 282 stipulates, when through a general,
regional or
bilateral agreement or otherwise States Parties have agreed to
settle a dispute by a
procedure entailing a binding decision, that procedure
controls.
Despite the fact that states have choice among different fora,
in most cases
recourse to dispute settlement is nonetheless obligatory. The
drafters of the
Convention anticipated that parties to a dispute might not
select the same procedure.
In this case, arbitration will be used. Moreover, if a state
does not declare a preferred
forum, its choice defaults to arbitration.The obligatory nature
of jurisdiction under Section 2 of Party XV is also
confirmed by another feature. The provision of the Convention
does not allow
methods historically used by disputing parties in order to avoid
arbitrations. For
instance, a states failure to appoint an arbitrator will not
prevent the creation of an
arbitral tribunal. The President of ITLOS14in the case of
arbitrationand the
Secretary General of the United Nationsin the case of special
arbitrationhave
the authority to appoint arbitrators, should the parties fail to
act within a specified
time limit. Furthermore, lack of agreement on an arbitral
tribunals procedure, will
not block the arbitration, because the tribunal may decide its
own procedures.
Finally, a states failure to appear before an arbitral tribunal
will not prevent the
tribunal from reaching a binding decision. Both the Statutes of
the ICJ and the
ITLOS provide that default of appearance does not preclude
judgements.
All decisions of a third-party tribunal in contentious cases
under Part XI and XV
are legally binding.15 The binding nature of the decision is
made explicitly in
several articles of the Convention. As far as the ICJ is
concerned, references are
made in its Statute and in the UN Charter.16
14 Pursuant to Article 3 of Annex VII of UNCLOS, if parties are
unable to reach an agreement on the
appointment of one or more of the members of the tribunal to be
appointed by agreement, or on the
appointment of the president of the arbitral tribunal, these
appointments shall be made by the President of
the International Tribunal for the Law of the Sea, at the
request of a party to the dispute and in
consultation with the parties. As an example, it is interesting
to refer to the arbitral proceedings instituted
to settle the maritime boundary dispute between Bangladesh and
India in the Bay of Bengal. On 12
February 2010, the President of ITLOS, Judge Jose Luis Jesus,
appointed three arbitrators to serve as
members of the Annex VII arbitral tribunal for the settlement of
the aforementioned dispute. The
arbitrators are Rudiger Wolfrum (President), Tulio, Treves and
Ivan Shearer.15 See UNCLOS, Articles 188(2), 292(4), 296; Annex VI,
Articles 15(5), 33, 39; Annex VII, Articles 11;
Annex VIII, Article 4.16 See UN Charter, Article 94; ICJ
Statute, Article 59.
Dispute settlement in the law of the sea 271
123
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2 Bangladesh and Myanmar in search of a judicial forum:from
Annex VII tribunal to ITLOS
Bangladesh and Myanmar are states with adjacent coasts in the
Bay of Bengal.17
They claim both an EEZ and a continental shelf in the region.
Their claims overlap.
In 1994, the Territorial Waters and Maritime Zones Act was
adopted by theParliament of Bangladesh. According to this Act,
Bangladeshs maritime bound-
aries are defined with Myanmar and India in their territorial
sea, EEZ and
continental shelf.
Following the adoption of this Act, Myanmar claimed a maritime
boundary with
Bangladesh, based on what it characterised as an equidistance
line. Bangladesh did
not accept the proposed line, considering that it is inequitable
and sustaining that it
severely cut off and reduced Bangladeshs maritime
entitlement.
In 1979, following bilateral negotiations, Bangladesh proposed
another line
(more equitable) of delimitation in the EEZ and continental
shelf. Despite the fact
that there was no official agreement between 1978 and 2005,
according to
Bangladesh, Myanmars conduct was in accordance with this
proposed boundary,
referred as the Friendship Line. From 2005, Myanmar changed its
practice,
offering several concessions blocks for oil and gas exploration
in the area between
the so called Friendship Line and the equidistance line as
defined by Myanmar.
Furthermore, Myanmars licensees have engaged in drilling and
other exploratory
activities in the disputed area, without having the prior
consent of Bangladesh.
Doing so, Bangladesh considered that these activities seriously
prejudiced its rights
to equitable delimitation and its sovereign rights for purpose
of exploring and
exploiting natural resources in the EEZ and continental
shelf.
On 16 December 2009, Myanmar submitted to the Commission on the
limits of
the continental shelf (CLCS) its application regarding its
continental shelf beyond
200 nautical miles. Bangladesh insists that Myanmars claims are
not in accordance
with UNCLOS. Bangladesh shall make its submission to the
Commission by July
2011 and will justify its entitlement to continental shelf
belong 200 nautical miles in
area, where Myanmar asserted claims in its submission to the
CLCS.
2.1 Judicial proceedings
Pursuant to Articles 286 and 287 of the UNCLOS, and in
accordance with the
requirements of Article 1 of Annex VII, Bangladesh gave written
notification to
Myanmar, that having failed to reach a settlement after
long-lasting negotiations and
exchanges of views, it decided to submit the dispute regarding
the delimitation of its
maritime boundary with Myanmar in the Bay of Bengal to the
arbitral procedure
provided in Annex VII of UNCLOS.
Bangladesh and Myanmar have both ratified UNCLOS, on 27 July
2001 and
21 May 1996, respectively. UNCLOS establishes in its Part XV a
regime for the
settlement of disputes concerning the interpretation and the
application of the
17 See map in Appendix 1.
272 I. Konstantinidis
123
-
Convention.18 According to Article 279, states are required to
seek a solution by
peaceful means in accordance with the UN Charter. Article 283(1)
requires that,
when a dispute arises between the States Parties, the parties
should proceed
expeditiously to an exchange of views.
Having failed to settle the dispute between them by peaceful
means, Article
281(1) allows recourse to procedures, including procedures
entailing binding
decisions as under Section 2 of Part XV. These procedures can be
initiated by any
party to the dispute in the court or a tribunal having
jurisdiction under Section 2.
The choice of procedure is described in Article 287. According
to Article 287(1),
States Parties can choose one or more means for the settlement
of disputes by a
written declaration. Absent any written declaration, states are
deemed to have
accepted arbitration in accordance with Annex VII. Consequently,
pursuant to
Article 286, Bangladesh submitted its dispute with Myanmar
concerning the
delimitation of their maritime boundary in the Bay of Bengal to
an Annex VII
arbitral tribunal.
In the meantime, Myanmar proposed that the matter between it and
Bangladesh
be submitted to the ITLOS and transmitted a written declaration
on 4 November
2009, conferring to ITLOS its jurisdiction over the case.
Responding to Myanmars
declaration, Bangladesh also transmitted on 12 December 2009 to
ITLOS its written
declaration according to which, it accepts the jurisdiction of
the ITLOS for the
settlement of dispute concerning the delimitation of their
maritime zones in the Bay
of Bengal. In order to reinforce its consent Bangladesh also
submitted a notification
to ITLOS, stating that given the mutual consent of the two
states, Bangladesh
considers that ITLOS is the only forum for the resolution of the
parties dispute.Based on the aforementioned declarations by Myanmar
and Bangladesh,
submitting to ITLOS for adjudication their dispute concerning
delimitation of their
maritime boundary in the Bay of Bengal, the case was entered in
the List of Cases as
Case No. 16 on 14 December 2009.19
The President of ITLOS, having regard to Articles 24 and 27 of
the Statute of the
Tribunal and to Articles 45, 46, 55, 56, 59 and 61 of the Rules
of the Tribunal
discussed with the agents of both of the states and agreed the
order and time limits
for the filing of the written proceedings and of the Memorial
and the Counter
Memorial.
2.2 Issues
Bangladesh prepared a notification under Article 287 and Annex
VII, Article 1 of
UNCLOS while having recourse to an Annex VII Arbitral Tribunal.
This
notification was also sent to ITLOS with Bangladeshs declaration
regarding the
acceptance of the jurisdiction of ITLOS on the case. Until now,
there is no official
notification prepared by Myanmar. Nevertheless, judging from the
bilateral
18 For an analytical presentation, see Klein (2004), Mensah
(1998, pp. 307323) and Queneudec (1991,
pp. 381387).19 For an overview of all documents on the case, see
http://www.itlos.org/start2_en.html (last visited on
27 February 2010).
Dispute settlement in the law of the sea 273
123
-
negotiations, it is obvious that, as far as the delimitation is
concerned, Myanmar
insists on the equidistance method, whereas Bangladesh presses
for the equity
principle. In addition, during the latest negotiations which
took place in Nay Pyi
Taw, the new Myanmar capital, Myanmar proposed to draw a new
line, near the so-
called Friendship Line, for the demarcation of the maritime
boundary between the
two countries.
According to this notification, Bangladesh requests the Tribunal
delimit the
maritime boundary between Bangladesh and Myanmar in the Bay of
Bengal, in
the territorial sea, the EEZ and the continental shelf,
including the portion of the
continental shelf of Bangladesh that lies beyond 200 nautical
miles from the
baselines from which its territorial sea is measured. The
Tribunal should act in
accordance with the principles and rules of UNCLOS.
Secondly, as far as the territorial sea is concerned, Bangladesh
requests the
Tribunal to confirm that the maritime boundary between it and
Myanmar is
delimited by the 1974 Agreed Minutes Between the Bangladesh
Delegation and theBurmese Delegation Regarding the Delimitation of
Maritime Boundary Between theTwo Countries. Thirdly, Bangladesh
asked the Tribunal to declare that Myanmarhas violated its
obligation to make every effort to reach a provisional
arrangement
pending delimitation of the maritime boundary as required by
UNCLOS Article
74(3) and 83(3). According to Bangladesh, this violation derived
from the fact that
Myanmar authorised its licences to engage drilling and other
exploratory activities
in maritime areas claimed by Bangladesh and thus the Tribunal
has to order
Myanmar to pay compensation to Bangladesh as appropriate.
Finally Bangladesh
noted that is has the right to supplement or amend its claims
and to make such other
requests from the Tribunal, as it may be necessary in order to
preserve its rights
under UNCLOS.
3 Continental shelf beyond 200 nautical miles and the Bay of
Bengal
It is undeniably true that, in international law, the unilateral
decision of the coastal
state determines the external limits of its maritime zones under
national jurisdiction.
This decision has legal consequences to other states, provided
that it is not in
contradiction with international law rules. As for the extended
continental shelf rule,
the UNCLOS provides for the creation of an organ of control for
the determination
of its outer limits. This organ, called the CLCS, permet non
seulement dempecherles Etats cotiers de transgresser les re`gles
internationales en matie`re de delimitationdes limites exterieures
de leur plateau continental, mais aussi de permettre unemeilleure
protection du patrimoine commun de lhumanite face a`
lexpansionnismeindividuel des Etats cotiers.20
The UNCLOS refers to the CLCS on two occasions. The first
mention is in
Article 76. At the same time, exhaustive reference is made in
Annex II to the
Convention. It has to be reminded that this Annex is an integral
part of the
20 See Beigzadeh (2000, p. 72). For an overview of the
Commission, see Meese (2005, pp. 418440) and
Smith (1999, pp. 135140).
274 I. Konstantinidis
123
-
Convention, according to Article 318. Besides, Article 76,
paragraph 8 of the
Convention, refers explicitly to Annex II.21
One of the most interesting aspects concerning the Commission
turns on the fact
that the majority of states will not have a direct impact or
interaction with the
Commission. However, it is the international community as a
whole, which will be
marked by the recommendations made the Commission.22
A brief analysis of the role and functions of the Commission is
needed, in order
to clarify the outer continental shelf case in the Bay of
Bengal.
3.1 The CLCS: role and functions
The CLCS is the scientific and technical organ in charge of
receiving, by the coastal
state, all pertinent scientific and technical data and
information concerning the
characteristics of the external limits of the outer continental
shelf. These are various
and complex, including bathymetric and seismic data, permitting
to justify the
geological and geomorphologic situation, as well as calculations
that resulted in
fixing the outer limits, and the geodesic formula that has been
used. The commission
examines the application and then issues its recommendation to
the coastal states
concerning the fixing of the outer limits of its continental
margin.
The Convention gives rights and imposes duties to States
Parties. The Meeting of
the States Parties has established the Rules of Procedure of the
Commission. During
its sessions, the Meeting treats, among other things, questions
concerning the
ITLOS, the International Seabed Authority, and as far as the
Commission is
concerted, the election of its members and all rules regarding
its organisation.
With the role of fixing the limits between states and the Area
under the
International Seabed Authority, Article 1(1) of Annex II of the
Convention stipulates
that the functions of the Commission shall be (a) to consider
the data and other
material submitted by coastal states concerning the outer limits
of the continental
shelf in areas where those limits extend beyond 200 nautical
miles, and to make
recommendations in accordance with Article 76 and the Statement
of Understanding
adopted on 29 August 1980 by the Third United Nations Conference
on the Law of
the Sea; (b) to provide scientific and technical advice, if
requested by the coastal
State concerned during the preparation of the data referred to
in subparagraph (a). In
this case, the coastal state is in charge of the expenses of its
representative.
For Professor Karagiannis, [l]impression generale que donne
lAnnexe II :[est que] la Troisie`me Conference sur le droit de la
mer netait pas sure de lamanie`re de laquelle il convenait de
traiter la Commission des limites du plateaucontinental. Organe ni
tout a` fait politique ni tout a` fait impartial, la Commissionest
surtout caracterisee par sa nature juridique fuyante. Les
contradictions affectantsa composition ne pouvaient pas rester sas
influer son mode de fonctionnement.23
21 In addition, we underline that Annex II of the Final Act of
UNCLOS III also refers to the Commission
on the limits of the continental shelf. The Final Act is not
part to the Convention.22 The Commission is not in charge of
questions related to delimitation. Its task is to fix of the
outer
limits of the continental shelf beyond 200 nautical miles.23
Karagiannis (1994, p. 171).
Dispute settlement in the law of the sea 275
123
-
This thought reflects the way certain people understood the
Commission, as an
organ of control, a Watchdog.24 Nowadays, after the first
submission made by the
Russian Federation and the recommendations issued, another role
can be
underlined. According to A.A. Zinchenko, former Secretary of the
Commission,
The role of this highly scientific organ, which is called to
provide assistance in thevery politized realm of setting legal
boundaries, is to help establish the true limit ofthe outer
boundary of the continental shelf according to the terms of the
UnitedNations on the Law of the Sea. Its only function is to help
both the coastal state andthe international community with all the
scientific expertise at its disposal toestablish where these limits
are located according to the provisions of theConvention. The
process of the consideration of the submission israther than ajoint
cooperation between the scientists of the coastal State and those
of theCommission, a joint effort to establish the correct line in
accordance with thecriteria set out in the Convention.25 Even if we
take for granted this role ofthe Commission, we should not loose
sight of the fact that nul ne peut occulterson caracte`re politique
puisque la Commission contribue a` letablissement du tracedes
frontie`res a` linterieur desquelles les Etats exercent leurs
droits souverains auxfins de lexploration et de lexploitation des
ressources naturelles de leur plateaucontinental.26
Apart from these two functions, clearly defined in the Montego
Bay Convention,
we have to mention another one, not expressly referred in the
Convention. This
function has to do with the interpretation and the application
of the Convention.
Some developments within the Commission clearly demonstrate this
role. The
Scientific and Technical Guidelines adopted in on 14 May 199927
represent a sort of
interpretation of the Convention and mainly of Article 76. It
seems that the
Commission is aware of its role concerning the interpretation
and application of
the relative clauses. It made the following observation
regarding the Guidelines: theCommission aims to clarify its
interpretation of scientific, technical and legal termscontained in
the Convention. Clarification is required in particular because
theConvention makes use of scientific terms in a legal context,
which at times departssignificantly from accepted scientific
definitions and terminology. In other cases,clarification is
required because various terms in the Convention might be left
opento several possible and equally acceptable interpretations. It
is also possible that itmay not have been felt necessary at the
time of the Third United Nations Conferenceon the Law of the Sea to
determine the precise definition of various scientific andtechnical
terms. In still other cases, the need for clarification arises as a
result of thecomplexity of several provisions and the potential
scientific and technical difficultieswhich might be encountered by
States in making a single and unequivocalinterpretation of each of
them.28 Consequently, the Commission commits to clarify
24 See Gardiner (1978, p. 145 and s).25 See Zinchenko (2004, pp.
223250).26 See de Marfy Mantuano (2003, p. 400).27 See CLCS/11 at
http://www.un.org/Depts/los/clcs_new/commission_documents.htm#Documents
(last
visited on 27 February 2010).28 de Marfy Mantuano (2003,
paragraph 1.3).
276 I. Konstantinidis
123
-
the ambiguities of Article 76 and to give precise definition of
this provision. This
procedure comprises an interaction between law and science and
it is very surprising
the fact that legal expertise was not included within the
Commission.29
3.2 The CLCS and interstate maritime disputes
Article 76 is the only clause in the Convention referring to the
outer limits of the
continental shelf, stipulating that this provision is without
prejudice to the question
of delimitation of the continental shelf between states with
opposite or adjacent
coasts.30 The relation between Article 76 and the delimitation
of the continental
shelf is analysed in the Rules of Procedure of the
Commission.
The existence itself of Article 76(10) confirms that the Article
deals only with the
title and the establishment of the continental shelf and not
with delimitation between
states. We can see this paragraph as the guarantee that the
application of Article 76
by a state does not influence the rights of another state, when
there is an intestate
dispute regarding continental shelf delimitation. Paragraph 10
demonstrates that the
final and binding character of these limits (Para. 8) cannot be
invoked by a state in
case of a future delimitation.
The procedure established by Article 76 for the definition of
the outer limits of
the continental shelf does not intend to sort out any
continental shelf delimitation
disputes. Rule 46(1) of the Rules of Procedure of the Commission
establishes a
particular mechanism, details of which can be found in Annex I
of the Rules of
Procedure.31 This mechanism applies in cases of disputes
concerning the continental
shelf delimitation of states with opposite or adjacent coastal,
and in case of other
unresolved land or maritime disputes. According to rule 46(2),
all actions taken by
the Commission are without prejudice to questions relating to
the delimitation
between states. Consequently, it is precised that the procedure
established by Annex
I of the Rules of Procedure intends to assure that the
Commission acts in accordance
with its mandate according to the Convention.
Furthermore, the Rules of Procedure seem to introduce new
factors affecting the
submission by a coastal state and may control if the submission
is to be examined or
not. Firstly, paragraph 3 of Annex I of the Rules of Procedure
provides that in case
of questions with prejudice to the delimitation between states,
coastal state may
proceed to a submission relating to a part of its continental
shelf. The submission
concerning the other part can be realised later. In addition,
paragraph 5 of the same
29 See Nelson (2002, pp. 12351253).30 The application of Article
76 could influence the delimitation of maritime zones beyond
200 nautical miles. This could create a new basis for the law of
maritime boundary delimitation,
considering that it could reinforce arguments based on the
natural prolongation. In the case Libya/Malta,
the International Court of Justice rejected the arguments
claiming that the natural prolongation could play
an important role in the delimitation of maritime zones within
200 nautical miles. The Court left open this
possibility in the case of zone beyond 200 nautical miles. See
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgement, I.C.J.
Reports 1985, note 22, paragraph 39. See also Decaux (1985, pp.
294323). Foran overview of the relevance of the natural
prolongation, see Charney (2002, pp. 10111029).31 For the latest
version of the Rules of Procedure of the Commission, see CLCS/40, 2
July 2004. It is
reminded that the Rules of Procedure were adopted in 1997. From
that moment, the Commission
introduced a series of changes.
Dispute settlement in the law of the sea 277
123
-
Annex clarifies that the Commission should neither examine nor
qualify a
submission in case of an existing land or maritime dispute.
However, the
Commission can consider the submission with the prior consent of
all parties
involved in that dispute. Consequently, it can be alleged that
in some cases, the
consideration of a submission by the Commission is possible only
with the prior
consent of states involved in a dispute.32
3.3 The submission of the Union of Myanmar to CLCS and the
Statement
of Understanding
On 16 December 2008, the CLCS received the submission made by
the Union of
Myanmar on the limits of the continental shelf beyond 200
nautical limes from the
baselines from which the breadth of the territorial sea is
measured. The submission
was made in accordance with Article 76, paragraph 8 of the
UNCLOS. The
Convention entered in force for Myanmar on 20 June 1996.33
According to the Rules of Procedure of the CLCS, the
communication was
circulated to all member states of the United Nations, as well
as States Parties to
the Convention, with the view to making public the executive
summary of the
submission, including all charts and coordinated contained in
the summary. The
consideration of the submission was included in the provisional
agenda of the 24th
session of the CLCS, which was held in New York from 10 August
to 11 September
2009.
According to the Statement of the Chairman of the CLCS on the
progress of work
in the Commission, distributed on 1 October 2009, Myanmar
presented its
submission to the Commission on 24 August 2009.34
The head of the delegation of Myanmar, Mr. Min Lawin, after
indicating the
member of the Commission that had assisted Myanmar by providing
scientific and
technical advice with respect to the submission, proceeded in
several comments.
In order to better clarify some parts of Myanmars submission, it
is of great
importance to evoke some details about the Statement of
Understanding set out at
Annex II of the Final Act of UNCLOSI III35 and to analyse the
notes verbales sent
to the Commission in respect to Myanmars submission.
The results of the Third United Nations Conference on the Law of
the Sea can be
found in two instruments: the Law of the Sea Convention (adopted
on 30 April
1982) and the Final Act of UNCLOS III (adopted on 24 September
1982). The
preamble, the operative parts and nine Annexes constitute the
Convention.
According to Article 318 of the Convention, these Annexes form
its integral part.
32 For an extensive analysis, see Johnson and Oude Elferink
(2006, pp. 93119).33 The executive summary of the submission made
by the Union of Myanmar, can be found at
http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mmr.htm
(last visited on 27 Feb-
ruary 2010).34 See CLCS/64 at
http://www.un.org/Depts/los/clcs_new/commission_documents.htm#Documents
(last
visited on 27 February 2010).35 For the text of the Final Act,
see
http://www.un.org/Depts/los/convention_agreements/convention_
overview_convention.htm (last visited on 27 February 2010).
278 I. Konstantinidis
123
-
As far as the Final Act is concerned, it is completed by seven
Annexes and an
Appendix. Annex I comprises four resolutions, which have a
substantial link with
the Convention itself.36
Apart from this, Annex II presents great importance. It contains
the Statement of
Understanding concerning a specific method to be used in
establishing the outer
edge of the continental margin. This is perceived as a
substantive Addendum to
Article 76 of UNCLOS and consequently is has to be taken into
account by the
CLCS in outer continental shelf submissions in the southern part
of the Bay of
Bengal. It had to be noted that the Statement of Understanding
was not adopted
together with the Convention but 5 months later. Nevertheless,
it is considered as an
integral whole with UNCLOS.
With regard to the notes verbales, four countries sent their
communication to the
CLCS: Sri Lanka (2 March 2009), India (26 March 2009), Kenya (30
April 2009)
and Bangladesh (23 July 2009). Three of them, Sri Lanka, Kenya
and India, also
made their submission to the CLCS. Myanmar is in the same region
(Bay of Bengal)
with Sri Lanka, India and Bangladesh.37
As far as the note verbale of Sri Lanka is concerned, it
underlines that the
executive summary of the submission of Myanmar relies, inter
alia, on the
Statement of Understanding. The Statement of Understanding
concerns a special
method to be used in establishing the outer edge of the
continental margin. In its
note verbale, Sri Lanka notes that the contents of the executive
summary do not
enable Sri Lanka to make an informed judgment on the way Myanmar
interprets and
applies the aforesaid Statement. Nevertheless, Sri Lanka states
that the word
State included in the Statement refers to Sri Lanka.
Accordingly, it agrees to the
presentation of the submission to the CLCS, on the understanding
that this is
without prejudice to future submission made by Sri Lanka, under
the terms of the
Statement of Understanding. It also requests the Commission that
no recommen-
dation prejudicial to Sri Lankas interest be made on the area
claimed by Myanmar
under the Statement of Understanding. In addition, the
consideration of the
submission shall not prejudice the delimitation of the
continental shelf between
neighbouring states in the area claimed by Myanmar.
Following the reaction by Sri Lanka, the CLCS received the
second note verbale,
this time by India, in which three points can be distinguished.
Firstly, India refers to
the Agreement between the Republic of India and the Socialist
Republic of theUnion of Burma on the delimitation of Maritime
Boundary in the Andaman Sea, inthe Coco Channel and in the Bay of
Bengal, signed on 23 December 1986.According to India, in the
agreement, it is expressly provided that the extension of
the maritime boundary beyond point 16 in the Bay of Bengal will
be done
subsequently and this has not so far been done. Secondly, India
states that
Myanmars submission is without prejudice to the question of
delimitation of the
continental shelf between India and Myanmar. Thirdly, India
refers to the method
36 According to B. Vukas, the Final Act does not have a unique
legal nature. As far as Annexes I and II,
he sustains that these can be considered as international
agreements. For a general presentation of these
aspects, see Vukas (2004b).37 The notes verbales sent in
response to the submission of Myanmar can be found at
http://www.
un.org/Depts/los/clcs_new/submissions_files/submission_mmr.htm
(last visited on 27 February 2010).
Dispute settlement in the law of the sea 279
123
-
included in the Statement of Understanding. It sustains that
Myanmar has not
provided any basis concerning its entitlement to invoke the
Statement of
Understanding and that the Statement of Understanding is only
applicable to Sri
Lanka and India.
The third note verbale regarding Myanmars submission was sent by
Kenya, a
state not in geographical proximity to the Bay of Bengal. Kenyas
communication
refers exclusively to the Statement of Understanding.38 After
noting that the
submission of Myanmar relies, inter alia, on the Statement of
Understanding
concerning a specific method to be used in establishing the
outer edge of the
continental margin. Kenya reminds of the historic background of
the aforesaid
Statement. During the negotiations of the UNCLOS, the Conference
of the Parties
considered that the application of Article 76 to coastal states
with special margins
would result to an inequitable situation for them and elaborated
alternative scientific
criteria to be used by such states. The Conference further
requested the CLCS to use
this Statement when considering submissions by coastal states
within the southern
part of the Bay of Bengal. According to Kenya, this special
method can be used by
any coastal state which has the ability to demonstrate the
existence of these special
conditions and that using another method would result in an
inequitable result.
The final and the most extensive note verbale concerning the
submission of
Myanmar came from Bangladesh. In its communication, the Republic
of Bangla-
desh focuses on two observations. The first one concerns an
existing unresolved
dispute. In the executive summary, Myanmar states that the area
of continental
shelf, that is subject of this submission, is not subject to any
disputes between
Myanmar and other states. Delimitation negotiations between
Myanmar and
Bangladesh are ongoing and consistent with Article 76(10) and
this submission is
made without prejudice to the eventual delimitation. In this
regard, Bangladesh
underlines that the negotiations mentioned by Myanmar relate to
the continental
shelf as well as to the EEZ between the two states and that such
delimitation
remains unresolved. The unresolved delimitation in the Bay of
Bengal shall be
considered as a dispute according to Rule 46 of the Rules of
Procedure and of
38 It is interesting to mention that on 6 May 2009 Kenya made
its submission to the Commission on the
limits of the continental shelf. In the executive summary of the
submission, we underline paragraph 4,
according to which Kenya invokes, inter alia, the specific
method for the establishment of the outer edge
of the continental margin set out in the Statement of
Understanding. Responding to Kenya, Sri Lanka sent
a note verbale, reiterating that the principal state referred in
paragraph 3 of the Statement of
Understanding is Sri Lanka. In addition, it confirmed its
position that the application of the Statement of
Understanding and the Commissions mandate to make recommendation
under the said Statement is
limited to states in the southern of the Bay of Bengal as
reflected in paragraph 5 of the Statement of
Understanding. On 3 September 2009, the delegation of Kenya
presented its submission to the CLCS.
During the presentation and responding to the note verbale by
Sri Lanka, Kenya was of the view that the
principles contained in the Statement of Understanding could
apply to whenever a state is able to
demonstrate the existence of the special conditions envisaged in
the Statement. Moreover, recalling the
note verbale by Sri Lanka, it emphasised that neither the
Convention nor the Statement of Understanding
refer to any principal State. The Commission decided to revert
the consideration of the submission at
the plenary level at the time when the submission is next in
line for consideration as queued in the order it
was received. The executive summary of the submission as well as
the notes verbales, can be found at
http://www.un.org/Depts/los/clcs_new/submissions_files/submission_ken_35_2009.htm
(last visited on
27 February 2010).
280 I. Konstantinidis
123
-
Annex I thereto. Furthermore, Bangladesh alleges that the areas
claimed by
Myanmar as a part of its continental shelf, are the natural
prolongation of
Bangladesh and hence Myanmars claim is disputed by
Bangladesh.
The second comment of Bangladesh is regarding the baselines used
by Myanmar.
Myanmar uses the straight baselines as defined recently by a Law
enacted on
5 December 2008. These baselines have been objected by
Bangladesh. On 30 June
2009, Bangladesh sent a note verbale to Myanmar protesting about
the baselines
used for Preparis and Co Co islands and along the coast of
Myanmar up to the
Oyster Island. These baselines are, accordingly, disputed under
Rule 46 and Annex I
of the Rules of Procedure of the Commission.
The last observation was on the applicability of the Statement
of Understanding
on the case of Myanmar. Bangladesh informs that it reserves the
right to submit
further comments on Myanmars contentions concerning the
applicability of the
Statement of Understanding of Annex II of the Final Act of
UNCLOS III. In
conclusion, Bangladesh affirms that given the dispute between
the two states
concerning the entitlement of the parts of the continental shelf
in the Bay of Bengal,
the Commission may not consider and qualify the submission made
by Myanmar
without the prior consent given by all states that are parties
to such a dispute. In
accordance with Article 76 and 83(3) of the Convention and Annex
I to the Rules of
Procedure, Bangladesh will make any effort to reach an agreement
with Myanmar
allowing the Commission to consider both of the submission of
Myanmar and the
Submission of Bangladesh, which will be made by July 2011.
Myanmar, having in mind these notes verbales and during the
presentations of
its submission to the CLCS, proceeded to some clarifications.39
Myanmar was of
the view that the Statement of Understanding applied to all
states that satisfied
the conditions contained therein and that Myanmar has done so in
its
presentation. As far as the reaction by India is concerned,
Myanmar noted that
a treaty had been signed with India in the Bay of Bengal and
Andaman Sea.
Since the Treaty only extended up to 200 nautical miles, Myanmar
is ready to
negotiate with India in respect of area beyond 200 nautical
miles. Regarding
Bangladesh, Myanmar sustained than Bangladesh tried to prove the
existence of a
dispute but without sufficient evidence. In addition, it
underlined that negotiations
with Bangladesh are ongoing and that according to Article
76(10), the submission
is made without prejudice to the delimitation of the continental
shelf between the
two states.
The Commission of the limits of the continental shelf took into
account the notes
verbales aforementioned and the comments made by Myanmar and
decided to defer
further consideration of the submission and the notes verbales
in a latter time as the
submission is next in the line in the order it was received.
This decision was made in
order to take into consideration any further developments that
may occur during the
intervening period.
39 For more information, see CLCS/64 at
http://www.un.org/Depts/los/clcs_new/commission_
documents.htm#Documents (last visited on 27 February 2010).
Dispute settlement in the law of the sea 281
123
-
4 Concluding remarks
Based on the maritime boundary dispute between Bangladesh and
Myanmar in the
Bay of Bengal, we seized the opportunity to refer to the dispute
settlement
provisions of the UNCLOS. This case is now before the ITLOS. The
tribunal is
about to deal, for the first time, with a case concerning
maritime boundary
delimitation issues.
One of the most intriguing parts of this case is the
delimitation of the continental
shelf beyond 200 nautical miles. It is the first time, where an
international tribunal is
called to rule on the delimitation of the continental shelf
beyond 200 nautical miles,
while one of the parties, Myanmar, has already made its
submission for the outer
limits of its continental shelf to the CLCS in the Bay of
Bengal.40 In addition, it is
the first time that we see, that the CLCS and the ITLOS are
about to interact. Both of
them, institutions created by UNCLOS, with distinguished
mandates, have to
cooperate in order to prove that the institutional framework of
the UNCLOS works
properly, with the aim to promoting the peaceful use of the
oceans.
At the same time, we envisage that some questions are going to
arise. How
should the Tribunal deal with the geological data, already
submitted to the CLCS?
Which institution is going to decide under which circumstances
and by which states,
the Statement of Understanding shall apply? It is time for the
ITLOS and for the
Meeting of the States Parties to the Convention to enlighten
these upcoming issues.
Appendix 1
See Fig. 1.
40 It has to be reminded that the first case, in which an
international tribunal faced the question of the
delimitation of the outer continental shelf, was the arbitration
between Canada and France in 1992.
According to the award, the tribunal declared that it was not
competent to decide on such delimitation.
For an extended analysis of the award, see Dipla (1994, pp.
653669). The second international case
where the issue of the delimitation of the outer continental
shelf was brought was in the arbitration
between Barbados and Trinidad and Tobago in 2006. We underline
that in both of these two cases, during
the procedures, the parties made no submission to the Commission
on the limits of the continental shelf.
For more information about the outer continental shelf question
before the Barbados/Trinidad and Tobago
Annex VII arbitral tribunal, see Kwiatkowska (2007, p. 594 and
s).
282 I. Konstantinidis
123
-
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Dispute settlement in the law of the sea 285
123
Dispute settlement in the law of the sea, the extended
continental shelf in the Bay of Bengal and the CLCS: some
preliminary observations on the basis of the case
Bangladesh/Myanmar before the International Tribunal for the Law of
the SeaAbstractRsumDispute settlement under the United Nations
Convention on the Law of the Sea (UNCLOS): the option of the
International Tribunal for the Law of the Sea (ITLOS)---a brief
historic approachThe UNCLOSUNCLOS Part XV: the choice of
third-party fora and obligatory jurisdiction to render binding
decisions
Bangladesh and Myanmar in search of a judicial forum: from Annex
VII tribunal to ITLOSJudicial proceedingsIssues
Continental shelf beyond 200 nautical miles and the Bay of
BengalThe CLCS: role and functionsThe CLCS and interstate maritime
disputesThe submission of the Union of Myanmar to CLCS and the
Statement of Understanding
Concluding remarksAppendix 1References