The establishment of a compulsory dispute settlement mechanism in the United Nations Convention o... more The establishment of a compulsory dispute settlement mechanism in the United Nations Convention on the Law of the Sea (UNCLOS) is intended to be the guarantor of the proper application of the convention. Yet the decisions of courts and tribunals seized pursuant to the procedures under Section 2 of Part XV of UNCLOS are in many regards difficult to reconcile and in some regards unable to form the basis for a jurisprudence constante. This article examines on an empirical basis the scope and limits of the compulsory dispute settlement mechanism under UNCLOS, as applied by international courts and tribunals during a period of twenty years since the first decision in the Southern Bluefin Tuna case until the recent decision on preliminary objections in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean.
Abstract: The sovereign and exclusive rights of States to explore the continental shelf and explo... more Abstract: The sovereign and exclusive rights of States to explore the continental shelf and exploit its resources implies an unfettered right to exclude any exploitation by a third State of hydrocarbons that are located on its continental shelf. Yet, these rights do not allow impairment to the sovereign and exclusive rights of third States to exploit resources that extend onto their continental shelves. State practice demonstrates multiple definitions of hydrocarbon deposits implying that the decision of whether a hydrocarbon deposit is transboundary may vary depending on the relevant treaty provision. State practice also indicates heterogeneous procedural and substantive approaches to the commencement of transboundary hydrocarbon deposits exploitation. These differences have substantive implications relevant to the determination of the constitutive elements of transboundary hydrocarbon deposits and for the circumstances under which a transboundary hydrocarbon deposit can operate un...
The delimitation process has conceptually been considered to reflect preexisting maritime boundar... more The delimitation process has conceptually been considered to reflect preexisting maritime boundaries. This arises as the delimitation has not been seen to result in de novo lines as the delimitation process has been conceived as a declaratory exercise that necessarily arises from the ab initio nature of coastal States’ rights to the continental shelf. The International Court of Justice and Annex VII arbitral tribunals have followed a declarative understanding of delimitation. Accordingly, the extraction of hydrocarbons by a third State in a yet un-delimited area, which, pursuant to a judicial decision, would be recognized to be part of the continental shelf of the neighboring State, should, it is reasonable to assert, constitute an international wrongful act under international law and engage the international responsibility of the relevant State(s), except if authorized expressly by the relevant coastal State. This a priori uncontroversial understanding appears revisited by the Spe...
The classification of seafloor highs as submarine elevations that are natural components of the c... more The classification of seafloor highs as submarine elevations that are natural components of the continental margin is the core exercise in the application of Article 76 of UNCLOS. Its outcome determines whether the outer limits are necessarily constrained by a 350 nautical mile distance line from the baselines, or, alternatively, whether the outer limits may extend far beyond that constraint where the outer edge of the continental margin goes beyond that distance. This paper examines in depth the constitutive criteria that govern the classification of seafloor highs as submarine elevations that are natural components of the continental margin. It is concluded that the interpretation of Article 76(6) of UNCLOS is necessarily dictated by a textual approach.
Shakespeare's famed citation “What's in a name? That which we call a rose by any other na... more Shakespeare's famed citation “What's in a name? That which we call a rose by any other name would smell as sweet” may be one of the most used quotations in contemporary literature. It serves to provide guidance in reviewing ones assessment of new perspectives on a given topic. The implications of the quotation induce the reader to feel concordant with the assumption that whatever name a given phenomenon is accorded, it is of little importance because the objects are similar and hence there is no reason to emphasise a peripheral and meaningless concept such as a name and the idea which it embraces. By contrast, intellectual property rights, and therein trademark law, is conceptually based on the assumption that a verbal mark, figure or colour of a given good or service need to be protected since these immaterial notions give rise to patrimonial rights conferred to the owner of the registered trademark. A well known slogan or figurative mark is capable of having significant co...
The legal and technical issues relating to the outer continental shelf entitlements in the Centra... more The legal and technical issues relating to the outer continental shelf entitlements in the Central Arctic Ocean present several challenges, most of which are to be resolved in accordance with Article 76 of the United Nations Convention on the Law of the Sea. Recently, two coastal States in the Central Arctic Ocean have made fully fledged submissions relating to the Arctic to the Commission on the Limits of the Continental Shelf. Russia has made a revised submission that is currently being considered by the Commission on the Limits of the Continental Shelf. The submission of Denmark/Greenland will most likely only be considered in 10 or 15 years time.
Cette these examine les principes regissant la delimitation judiciaire du plateau continental au-... more Cette these examine les principes regissant la delimitation judiciaire du plateau continental au-dela de 200 milles marins. Cet examen cherche a savoir si le constat que le titre sur la zone au dela de 200 milles marins peut etre considere comme avoir un impact pour la delimitation de cette zone, et quel est le role les recommandations de la Commission des limites du plateau continental dans la delimitation de la zone au-dela de 200 milles marins. Il apparait que l’objectivite et le caractere justiciable des principes et regles regissant la delimitation de la zone en deca de 200 milles ont ete legitimes et justifies parce qu'ils sont fondes sur la base du titre, c'est a dire l'element geographique que constitue la cote et par voie de consequence, les elements, autres que fondees sur la configuration cotiere sont refuses. La question est des lors, par voie d'analogie, de savoir si la base geologique et geomorphologique du titre sur la zone au—dela de 200 milles marins peut avoir une influence et, dans l’affirmative, laquelle, dans la lex delimitationis contemporaine qui s'est edifiee essentiellement pour la zone en deca de cette distance. Il sera conclu que la methodologie et les principes regissant la delimitation de la zone en deca de 200 milles marins ne s'appliqueront pas de maniere mutatis mutandis a la zone au-dela de cette distance, ne serait—ce du seul fait que les recommandations de la Commission des limites du plateau continental auront un role important dans la delimitation de cette zone.
Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the ... more Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the Sea Convention, the outer limits of its continental shelf beyond 200 nautical miles, it is to submit scientific and technical data of such limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that state. This obligation has subsequently been subject to a general de facto amendment by which the commencement of the 10 year time frame has been postponed to 13 May 1999 for the States for which the Convention had entered into force prior the above date. This article discusses whether any provision in the Convention, any subsequent agreement, or subsequent practice render inoperative the 10-year time frame with regard to those parts of the continental shelf that are disputed areas. It is concluded that nothing in the Convention, subsequent agreements, or subsequent practice allow for derogation of the 10-year time frame with regard to disputed areas.
... 51. View all notes. The reasoning was reiterated with regard to the application of 2,500-mete... more ... 51. View all notes. The reasoning was reiterated with regard to the application of 2,500-meter isobaths located on Joey Rise situated in the Wallaby and Exmouth Plateaus region. 54 54. ... 61 61. “Recommendations of the Commission to Australia,” supra note 8, paras. 51 and 141. ...
Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the ... more Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the Sea Convention, the outer limits of its continental shelf beyond 200 nautical miles, it is to submit scientific and technical data of such proposed limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that state. This obligation has subsequently been subject to a general de facto amendment by which the commencement of the 10-year time frame has been postponed to May 13, 1999, for the states for which the Convention had entered into force prior to the above date. This article discusses whether any provision in the Convention, any subsequent agreement, or any subsequent practice render inoperative the 10-year time frame with regard to those parts of the outer continental shelf that are disputed areas. It is concluded that nothing in the Convention, no subsequent agreements, and no subsequent practice allow for derogation of the 10-year time frame with regard to disputed areas.
The establishment of a compulsory dispute settlement mechanism in the United Nations Convention o... more The establishment of a compulsory dispute settlement mechanism in the United Nations Convention on the Law of the Sea (UNCLOS) is intended to be the guarantor of the proper application of the convention. Yet the decisions of courts and tribunals seized pursuant to the procedures under Section 2 of Part XV of UNCLOS are in many regards difficult to reconcile and in some regards unable to form the basis for a jurisprudence constante. This article examines on an empirical basis the scope and limits of the compulsory dispute settlement mechanism under UNCLOS, as applied by international courts and tribunals during a period of twenty years since the first decision in the Southern Bluefin Tuna case until the recent decision on preliminary objections in the Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean.
Abstract: The sovereign and exclusive rights of States to explore the continental shelf and explo... more Abstract: The sovereign and exclusive rights of States to explore the continental shelf and exploit its resources implies an unfettered right to exclude any exploitation by a third State of hydrocarbons that are located on its continental shelf. Yet, these rights do not allow impairment to the sovereign and exclusive rights of third States to exploit resources that extend onto their continental shelves. State practice demonstrates multiple definitions of hydrocarbon deposits implying that the decision of whether a hydrocarbon deposit is transboundary may vary depending on the relevant treaty provision. State practice also indicates heterogeneous procedural and substantive approaches to the commencement of transboundary hydrocarbon deposits exploitation. These differences have substantive implications relevant to the determination of the constitutive elements of transboundary hydrocarbon deposits and for the circumstances under which a transboundary hydrocarbon deposit can operate un...
The delimitation process has conceptually been considered to reflect preexisting maritime boundar... more The delimitation process has conceptually been considered to reflect preexisting maritime boundaries. This arises as the delimitation has not been seen to result in de novo lines as the delimitation process has been conceived as a declaratory exercise that necessarily arises from the ab initio nature of coastal States’ rights to the continental shelf. The International Court of Justice and Annex VII arbitral tribunals have followed a declarative understanding of delimitation. Accordingly, the extraction of hydrocarbons by a third State in a yet un-delimited area, which, pursuant to a judicial decision, would be recognized to be part of the continental shelf of the neighboring State, should, it is reasonable to assert, constitute an international wrongful act under international law and engage the international responsibility of the relevant State(s), except if authorized expressly by the relevant coastal State. This a priori uncontroversial understanding appears revisited by the Spe...
The classification of seafloor highs as submarine elevations that are natural components of the c... more The classification of seafloor highs as submarine elevations that are natural components of the continental margin is the core exercise in the application of Article 76 of UNCLOS. Its outcome determines whether the outer limits are necessarily constrained by a 350 nautical mile distance line from the baselines, or, alternatively, whether the outer limits may extend far beyond that constraint where the outer edge of the continental margin goes beyond that distance. This paper examines in depth the constitutive criteria that govern the classification of seafloor highs as submarine elevations that are natural components of the continental margin. It is concluded that the interpretation of Article 76(6) of UNCLOS is necessarily dictated by a textual approach.
Shakespeare's famed citation “What's in a name? That which we call a rose by any other na... more Shakespeare's famed citation “What's in a name? That which we call a rose by any other name would smell as sweet” may be one of the most used quotations in contemporary literature. It serves to provide guidance in reviewing ones assessment of new perspectives on a given topic. The implications of the quotation induce the reader to feel concordant with the assumption that whatever name a given phenomenon is accorded, it is of little importance because the objects are similar and hence there is no reason to emphasise a peripheral and meaningless concept such as a name and the idea which it embraces. By contrast, intellectual property rights, and therein trademark law, is conceptually based on the assumption that a verbal mark, figure or colour of a given good or service need to be protected since these immaterial notions give rise to patrimonial rights conferred to the owner of the registered trademark. A well known slogan or figurative mark is capable of having significant co...
The legal and technical issues relating to the outer continental shelf entitlements in the Centra... more The legal and technical issues relating to the outer continental shelf entitlements in the Central Arctic Ocean present several challenges, most of which are to be resolved in accordance with Article 76 of the United Nations Convention on the Law of the Sea. Recently, two coastal States in the Central Arctic Ocean have made fully fledged submissions relating to the Arctic to the Commission on the Limits of the Continental Shelf. Russia has made a revised submission that is currently being considered by the Commission on the Limits of the Continental Shelf. The submission of Denmark/Greenland will most likely only be considered in 10 or 15 years time.
Cette these examine les principes regissant la delimitation judiciaire du plateau continental au-... more Cette these examine les principes regissant la delimitation judiciaire du plateau continental au-dela de 200 milles marins. Cet examen cherche a savoir si le constat que le titre sur la zone au dela de 200 milles marins peut etre considere comme avoir un impact pour la delimitation de cette zone, et quel est le role les recommandations de la Commission des limites du plateau continental dans la delimitation de la zone au-dela de 200 milles marins. Il apparait que l’objectivite et le caractere justiciable des principes et regles regissant la delimitation de la zone en deca de 200 milles ont ete legitimes et justifies parce qu'ils sont fondes sur la base du titre, c'est a dire l'element geographique que constitue la cote et par voie de consequence, les elements, autres que fondees sur la configuration cotiere sont refuses. La question est des lors, par voie d'analogie, de savoir si la base geologique et geomorphologique du titre sur la zone au—dela de 200 milles marins peut avoir une influence et, dans l’affirmative, laquelle, dans la lex delimitationis contemporaine qui s'est edifiee essentiellement pour la zone en deca de cette distance. Il sera conclu que la methodologie et les principes regissant la delimitation de la zone en deca de 200 milles marins ne s'appliqueront pas de maniere mutatis mutandis a la zone au-dela de cette distance, ne serait—ce du seul fait que les recommandations de la Commission des limites du plateau continental auront un role important dans la delimitation de cette zone.
Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the ... more Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the Sea Convention, the outer limits of its continental shelf beyond 200 nautical miles, it is to submit scientific and technical data of such limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that state. This obligation has subsequently been subject to a general de facto amendment by which the commencement of the 10 year time frame has been postponed to 13 May 1999 for the States for which the Convention had entered into force prior the above date. This article discusses whether any provision in the Convention, any subsequent agreement, or subsequent practice render inoperative the 10-year time frame with regard to those parts of the continental shelf that are disputed areas. It is concluded that nothing in the Convention, subsequent agreements, or subsequent practice allow for derogation of the 10-year time frame with regard to disputed areas.
... 51. View all notes. The reasoning was reiterated with regard to the application of 2,500-mete... more ... 51. View all notes. The reasoning was reiterated with regard to the application of 2,500-meter isobaths located on Joey Rise situated in the Wallaby and Exmouth Plateaus region. 54 54. ... 61 61. “Recommendations of the Commission to Australia,” supra note 8, paras. 51 and 141. ...
Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the ... more Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the Sea Convention, the outer limits of its continental shelf beyond 200 nautical miles, it is to submit scientific and technical data of such proposed limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that state. This obligation has subsequently been subject to a general de facto amendment by which the commencement of the 10-year time frame has been postponed to May 13, 1999, for the states for which the Convention had entered into force prior to the above date. This article discusses whether any provision in the Convention, any subsequent agreement, or any subsequent practice render inoperative the 10-year time frame with regard to those parts of the outer continental shelf that are disputed areas. It is concluded that nothing in the Convention, no subsequent agreements, and no subsequent practice allow for derogation of the 10-year time frame with regard to disputed areas.
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