More Disputes ahead for the CLCS? CLCS Practice on Rule 46 of Its Rules of Procedure

In Tomas Heidar (ed), New Knowledge and Changing Circumstances in the Law of the Sea. Leiden/Boston, Brill/Nijhoff, 2020, pp. 232-246

When the provisions on the Commission on the Limits of the Continental Shelf (CLCS) were negotiated during the Third UN Conference on the Law of the Sea (UNCLOS III), its role in relation to disputes was only vaguely described in the Convention text. To implement and operationalize its obligations and mandate provided in article 76(8) of and Annex II to the United Nations Convention on the Law of the Sea (LOSC), the Commission created rule 46 of and Annex I to its Rules of Procedure (RoP), seeking to establish a uniform procedure for how to respond to continental shelf submissions subject to disputes. This operationalization of the provisions of the LOSC has caused controversy, and the CLCS has been criticized for lessening its Convention obligations; moving from non-prejudice to non-consideration of outer continental shelf (OCS) submissions. This Chapter argues that the non-consideration clause is not the only problem in relation to the CLCS’ handling of OCS disputes. Equally problematic is the CLCS’ interpretation and application of rule 46 of the RoP. The Chapter concludes that the CLCS’ current practice on the interpretation and application of rule 46 may cause great challenges in the future, as it increases the number and variety of disputes where States are allowed to block the CLCS’ consideration of OCS submissions by other States, with the ultimate effect of preventing coastal States from establishing final and binding limits towards the Area.