Monday, March 19, 2018

Oman and the Law of the Sea: Part II

In October 2017, the Sultanate of Oman submitted a formal application to the United Nations to extend its continental shelf. The first article in this three-part series outlined the framework of the international Law of the Sea as relevant to Oman. This second installment outlines the international legal process involved when a country seeks to expand its marine territory.

While Oman’s formal submission marked the end of a decade-long process of exploration and research, it marked only the beginning of the process of review and determination by the United Nations Commission on the Limits of the Continental Shelf (the “Commission”), part of the United Nations Division for Ocean Affairs and Law of the Sea. Established in 1997, the Commission is neither a judicial nor a political body, but rather an advisory group that gives technical guidance to states seeking to expand their continental shelves. The advice given by the Commission is based on the technical and objective criteria set out in the UN Convention on the Law of the Sea (the “Convention”).

The Commission is comprised of 21 experts from the fields of geology, geophysics or hydrography, who are elected by state parties to the Convention. The Commissioners serve five-year terms and volunteer significant time to assess the scientific and technical validity of the applications and data submitted by each coastal state. Among the Commission’s current members is an Omani, Dr. Adnan Rashid Al-Azri. The Commission holds two sessions per year at the United Nations headquarters in New York.

The Commission’s purpose is to consider the documentation submitted by the coastal state and to make recommendations regarding the outer limits of the continental shelf. After the state submits its application, the Commission waits three months to begin review to give interested parties, such as bordering states, time to consider any responses. After the three-month period, the Commission meets with a delegation from the submitting state, during which the state presents its submission and answers any preliminary questions from the Commission. The Commission then appoints a sub-commission of seven members to carry out a detailed review. Commission members from the concerned coastal state or its bordering states may not sit on the sub-commission. The sub-commission then meets as many times as necessary to complete a full technical and scientific review, which is not constrained by any time limits. During this process, the sub-commission may request further information or clarification from the submitting state or from outside legal or technical experts. The sub-commission considers each of the criteria established by the Convention and determines whether the state has submitted data sufficient to lay claim to an extension of its continental shelf. After completing its review, the sub-commission drafts recommendations on the proposed limits and passes these along to the full Commission.

After in-depth consideration and discussion by the Commission during its biannual sessions, the Commission decides whether to adopt the sub-commission’s recommendations regarding the delineation of the relevant state’s continental shelf. The process of consideration, requests for more information, and reconsideration can take years, depending on the technical complexity of the determination. After the Commission makes a formal recommendation, it is then incumbent upon the applicant state to promulgate national law effectuating the Commission’s recommendations. If the state disagrees with the Commission’s recommendations, it can resubmit its claim to the Commission for a new set of recommendations.

Although the extension of a state’s continental shelf limits is a matter of sovereign state law, the need for the Commission’s consideration and recommendation is twofold. First, the assessment and determination of submarine geographical bounds is a complex scientific and technical process requiring expert investigation, information gathering, and data analyses, and the Commission serves as a vital resource for coastal states which may not otherwise have access to such expertise. Second, the Commission acts as a safeguard of what the Convention has termed the “common heritage of mankind” – the seabed, ocean floor, subsoil, and resources beyond the outer limit of the continental shelf.

Coastal states do not have an unlimited right to submit applications expanding their continental shelf. Rather, the Convention provides that each coastal state seeking to expand its continental shelf must submit an application within ten years of the Convention coming into force for the state in question. However, given the technical complexity and financial demands of gathering data and forming a submission, many countries pushed for an extension of that deadline, at least for developing countries. Collectively, the parties to the Convention decided that applicant states could satisfy the ten-year deadline by submitting preliminary findings on their outer limits, a description of the status of their progress, and an intended final submission date. This decision spurred a raft of new placeholder applications, making it likely that the Commission will be reviewing submissions and resubmissions for at least the next decade.

The Commission is restricted to giving advice to determine the outer limits of a state’s continental shelf, and by its own procedural rules is not permitted to influence any potential dispute related to the delimitation of the shelf between two or more states. All recommendations of the Commission are made without prejudice to maritime boundary delimitation between states themselves. As this is often a sensitive area, applicant states are permitted to classify as confidential any data and other material forming part of its application.

 An example of the sensitive and high-stakes nature of these issues can be seen in the outcry following the very first submission to the Commission, which was the Russian Federation’s 2001 claim over extensive portions of the Arctic Circle. This raised the ire and concern of countries such as Canada and Norway who also had claims over the Arctic but had not yet submitted applications to the Commission. Ultimately, the Commission rejected large portions of Russia’s claims over the Arctic and the contentious issue remains unresolved.

The third and final installment in this series will examine Oman’s recent submission to the Commission and will discuss the potential benefits to Oman of extending its continental shelf, which include the right to explore for oil and gas and other non-living resources.

Click here to read Oman and the Law of the Sea: Part I