¹ United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397 (entered into force 16 November 1994) [UNCLOS].

² Ibid, art. 76(8).

³ The number includes 87 original submissions and 9 revised submissions. As some states made several submissions individually and/or jointly in respect of different portion of their OCS, the number of states making submissions to the CLCS is 74. For information on the submissions, relevant documents, and recommendations of the CLCS, see United Nations Division for Ocean Affairs and the Law of the Sea, “Submissions, through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, pursuant to article 76, paragraph 8, of the United Nations Convention on the Law of the Sea of 10 December 1982” (23 March 2022), online: DOALOS <https://www.un.org/depts/los/clcs_new/commission_submissions.htm>.

⁴ Rules of the Procedure of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/40/Rev.1 (17 April 2008) [RoP].

⁵ See Michael W. LODGE, “The Relevance and Importance of the Work of the Commission to the International Seabed Authority”, International Seabed Authority (10 March 2017), online: International Seabed Authority, online: UN <https://www.un.org/depts/los/clcs_new/documents/Presentations/6_CLCS_20_ANNIVERSARY_Lodge.pdf>.

⁶ UNCLOS, art. 156 and 157.

⁷ Ibid, art. 134(4).

⁸ Ibid, art. 134(3).

⁹ ELFERINK, Alex OUDE, “Paragraph 5(a) of Annex I to the Rules of Procedure of the Commission on the Limits of the Continental Shelf: Solution to a Problem or Problem without a Solution?” in NORDQUIST, Myron H., MOORE, John N. and LONG, Ronán, eds., Legal Order in the World's Oceans: UN Convention on the Law of the Sea (Leiden: Brill, 2017), 302 at 302Google Scholar; and SERDY, Andrew, “The Commission on the Limits of the Continental Shelf and its Disturbing Propensity to Legislate” (2011) 26 The International Journal of Marine and Coastal Law 355CrossRefGoogle Scholar.

¹⁰ RoP, Rule 46(1). Rule 46(2) repeats Article 9 of Annex II to UNCLOS which provides that “[t]he actions of the Commission shall not prejudice matters relating to the delimitation of boundaries between States”. This article is discussed further below.

¹¹ Land disputes were submitted before international courts and tribunals, such as the dispute concerning a land boundary between Costa Rica and Nicaragua in the northern part of Isla Portillos (Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), [2018] I.C.J. Rep. 139), or the dispute concerning the sovereignty over a number of islands between Malaysia and Singapore (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), [2008] I.C.J. Rep. 12). Maritime disputes include disputes, inter alia, concerning maritime delimitation (e.g. Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), [2021]), immunities of warships such as The “ARA Libertad” case (Argentina v. Ghana), or concerned a mixed of various maritime disputes such as the South China Sea Arbitration (The Philippines v. China) arbitration, which disputes on the legal basis for maritime entitlements, the status of maritime features, violations of the rights of the coastal states, protection of marine environment, navigational safety).

¹² For an in-depth discussion on the types of disputes have been raised by states to invoke Paragraph 5(a), see BUSCH, Signe Veierud, Establishing Continental Shelf Limits beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (Leiden/Boston: Brill Nijhoff, 2016)CrossRefGoogle Scholar. In this manuscript, Busch examines whether these disputes are within the scope of Paragraph 5(a).

¹³ RoP, Annex I, Paragraph 2.

¹⁴ Ibid, Paragraph (2)(a).

¹⁵ Information concerning the submission, reactions of other states and the decisions of the CLCS to defer the consideration of a submission can be found at the website of the CLCS, see United Nations Division for Ocean Affairs and the Law of the Sea, supra note 3. Except for the submission made by Guyana (objected by Venezuela) and the submission made by Pakistan (objected by Oman), the CLCS decided to defer the consideration of the submissions when one or more states raised an objection. In the case of the submission made by Guyana, it is perhaps that the CLCS did not apply Paragraph 5(a) to defer the consideration of the submission as requested by Venezuela because Venezuela is not a party to UNCLOS. If this is the case, the right to invoke Paragraph 5(a) would be reserved to states that are parties to UNCLOS only. In the case of the submission made by Pakistan, the CLCS seemed to disregard the objection made by Oman in 2009, when, in 2013, it decided to consider the submission. It is worth noting that Oman did not object to the decision of the CLCS. In 2014, Oman officially withdrew the objection after Pakistan submitted a note verbale in which, pursuant to the bilateral discussions in 2012, it recognised that there may be overlap between the area included in its submission and the potential OCS of Oman. Regarding the notes verbales, see United Nations Division for Ocean Affairs and the Law of the Sea, “Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Islamic Republic of Pakistan” (7 December 2021), online: DOALOS <https://www.un.org/Depts/los/clcs_new/submissions_files/submission_pak_29_2009.htm>.

¹⁶ Mavrommatis Palestine Concessions (Greece v. U.K.), Judgment No. 2, 30 August 1924, [1924] PCIJ (Ser. A) No. 2 at 11, para. 11.

¹⁷ See United Nations Division for Ocean Affairs and the Law of the Sea, “Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Joint submission by Malaysia and the Socialist Republic of Viet Nam” (3 May 2011) online: DOALOS <https://www.un.org/depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm>.

¹⁸ See United Nations Division for Ocean Affairs and the Law of the Sea, “Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Partial Submission by Malaysia in the South China Sea” (17 February 2022) online: DOALOS <https://www.un.org/depts/los/clcs_new/submissions_files/submission_mys_12_12_2019.html>.

¹⁹ The Chairman of the CLCS has noted that Annex I, including Paragraph 5(a) was developed to deal with “the issue of how the Commission should treat possible submission containing areas under actual or potential delimitation dispute”. See “Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission”, Doc. CLCS/7 (15 May 1998), at 2, para. 5.

²⁰ ELFERINK, Alex G. OUDE, “The Continental Shelf of Antarctica: Implications of the Requirement to Make a Submission to the CLCS under Article 76 of the LOS Convention” (2002) 17(4) The International Journal of Marine and Coastal Law 485 at 501CrossRefGoogle Scholar.

²¹ Statement by the Chairperson of the Commission on the Limits of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Doc. CLCS/68 (17 September 2010), at 5–6, paras. 16–9.

²² Office of the Prime Minister of the Transitional Federal Government of the Somali Republic, “Note verbale dated 19 August 2009 by the Transitional Federal Government of the Somalia Republic to the United Nations Secretary-General”, online: United Nations <https://www.un.org/depts/los/clcs_new/submissions_files/yem09/som_re_yem_clcs18.pdf>.

²³ Case concerning the Northern Cameroons (Cameroon v. United Kingdom), [1963] I.C.J. Rep. 15 at 33–4; Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), [2016] I.C.J. Rep. 100 at 138–9, paras. 123–4 [Nicaragua v. Colombia].

²⁴ Russian Federation; Russian Federation – Partial revised submission in respect of the Okhotsk Sea; Russian Federation – partial revised submission in respect of the Arctic Ocean; Ireland – Porcupine Abyssal Plain; New Zealand; Norway – in the North East Atlantic and the Arctic; Barbados; Indonesia – North West of Sumatra Island; Suriname; Uruguay; The Cook Islands – concerning the Manihiki Plateau; Ghana; Iceland – in the Ægir Basin area and in the western and south-eastern parts of Reykjanes Ridge; Denmark – In the area north of the Faroe Islands; Pakistan; Kenya; Nigeria; Côte d'Ivoire; Sri Lanka; Portugal; Tonga; Spain – in respect of the area of Galicia; Trinidad and Tobago; Cuba; Guyana; United Republic of Tanzania; Denmark – in respect of the Southern Continental Shelf of Greenland; Kiribati; Federated States of Micronesia – in respect of the Eauripik Rise; Denmark – in respect of the North-Eastern Continental Shelf of Greenland; Bahamas; Tonga – in the western part of the Lau-Colville Ridge; Joint submission by Cabo Verde, The Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone – in respect of areas in the Atlantic Ocean; Denmark – in respect of the Northern Continental Shelf of Greenland; and Spain – in respect of the area west of the Canary Islands.

²⁵ Myanmar; Yemen – in respect of south east of Socotra Islands; United Kingdom – in respect of Hatton Rockall Area; Iceland – in respect of Hatton-Rockall Area; Fiji; Joint submission by Malaysia and Vietnam – in the southern part of the South China Sea; Vietnam – in the North Area (VNM-N); United Kingdom – in respect of the Falkland Islands and of South Georgia and the South Sanwich Islands; Maldives; Denmark – Faroe-Rockall Plateau Region; Bangladesh; Gabon; China – in Part of the East China Sea; Republic of Korea; Nicaragua – in the southwestern part of the Caribean Sea; Angola; Canada – in respect of the Atlantic Ocean; France – in respect of Saint-Pierre-et-Miquelon; Somalia; and Mauritius – concerning the Southern Chagos Archipelago region.

²⁶ Australia; France – in respect of the areas of French Guiana and New Caledonia; Japan; Argentina; and Norway – in respect of Bouvetøya and Dronning Maud Land; and India.

²⁷ United Nations Division for Ocean Affairs and the Law of the Sea, “Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the Argentine Republic” (14 June 2016) online: DOALOS <https://www.un.org/depts/los/clcs_new/submissions_files/submission_arg_25_2009.htm> and United Nations Division for Ocean Affairs and the Law of the Sea, “Commission on the Limits of the Continental Shelf (CLCS) Outer limits of the continental shelf beyond 200 nautical miles from the baselines: Submissions to the Commission: Submission by the United Kingdom of Great Britain and Northern Ireland” (10 September 209) online: DOALOS <https://www.un.org/depts/los/clcs_new/submissions_files/submission_gbr_45_2009.htm>.

²⁸ ELFERINK, Alex G. OUDE, “Article 76 of the LOSC on the Definition of the Continental Shelf: Questions concerning its Interpretation from a Legal Perspective” (2006) 21(3) The International Journal of Marine and Coastal Law 269 at 283Google Scholar; ELFERINK, Alex G. OUDE and JOHNSON, Constance, “Outer Limits of the Continental Shelf and ‘Disputed Areas’: State Practice concerning Article 76(10) of the LOS Convention” (2006) 21(4) The International Journal of Marine and Coastal Law 461 at 466Google Scholar; Serdy, supra note 9 at 361–2.

²⁹ Øystein JENSEN, The Commission on the Limits of the Continental Shelf: Law and Legitimacy (Leiden/Boston: Brill, 2014) at 66.

³⁰ Oude Elferink, supra note 9 at 303.

³¹ Letter dated 25 August 2005 from the Legal Counsel, Under-Secretary-General of the United Nations for Legal Affairs, addressed to the Chairman of the Commission on the Limits of the Continental Shelf, Doc. CLCS/46 (7 September 2005) at 7 [CLCS/46]; International Law Association's Committee on the Legal Issues of the Outer Continental Shelf, Second Report (2006) 13 [ILA Second Report]; Serdy, supra note 9 at 361 and footnote 16; Jensen, supra note 29 at 49–51; Busch, supra note 12 at 42.

³² The doctrine of implied powers is repeatedly confirmed by the International Court of Justice, see Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] I.C.J. Rep. 174 at 179; Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion, [1954] I.C.J. Rep. 47 at 57; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, [1962] I.C.J. Rep. 151 at 168; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, [1996] I.C.J. Rep. 66 at 79.

³³ UNCLOS, art. 3(1)(a). The CLCS has two functions. Besides the function mentioned above, the CLCS is to provide advice if requested by the coastal state during the preparation of the submission to be submitted for the consideration of the CLCS (UNCLOS, art. 3(1)(b)).

³⁴ Report of the Fifth Meeting of States Parties, Doc. SPLOS/14 (20 September 1996) at 11, para. 44.

³⁵ See Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of the work in the Commission, Doc. CLCS/4 (17 September 1997) at 2 para 9 and 11; Report of the Eight Meeting of States Parties, Doc. SPLOS/31 (4 June 1998) at 11, para. 45.

³⁶ CLCS/46, supra note 31 at 8; Oude Elferink and Johnson, supra note 28 at 467; ILA Second Report, supra note 31; Serdy, supra note 9.

³⁷ Oude Elferink, supra note 20 at 500, footnote 67; Jensen, supra note 29 at 65–8; Oude Elferink, supra note 9 at 307.

³⁸ Oxford English Dictionary Online, “Prejudice”, online: Lexico <https://www.lexico.com/definition/prejudice>.

³⁹ Serdy, supra note 9 at 364.

⁴⁰ Ibid, at 365.

⁴¹ Oude Elferink, supra note 9 at 307.

⁴² The ITLOS seems to equate the phrase “without prejudice” with “shall not prejudice”. In the judgment in Bangladesh/Myanmar, it observes that “the functions of the Commission are without prejudice to the question of delimitation of the continental shelf between States”, Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), [2012] I.T.L.O.S. Rep. 4 100, para. 379 [Bangladesh/Myanmar].

⁴³ Nicaragua v. Colombia, supra note 23 at 137, para. 113.

⁴⁴ Maritime Delimitation in the India Ocean (Somalia v. Kenya), [2017] ICJ Rep 3 at 31, para. 67 [Somalia v. Kenya].

⁴⁵ Ibid, at 31–2, paras. 68–9.

⁴⁶ Ibid, at 311–5; Issues with respect to article 4 of Annex II to the United Nations Convention on the Law of the Sea, Background paper prepared by the Secretariat, Doc. SPLOS/64 (1 May 2001) at 12, para. 46; HERDT, Sandrine W. DE, “The Relationship between the Delimitation of the Continental Shelf beyond 200 nm and the Delineation of Its Outer Limits” (2020) 51(3) Ocean Development and International Law 263 at 274–5CrossRefGoogle Scholar.

⁴⁷ Bangladesh/Myanmar, supra note 42 at 105, para. 397.

⁴⁸ Oude Elferink, supra note 9 at 311.

⁴⁹ Bangladesh/Myanmar, supra note 42 at 115, para. 443.

⁵⁰ Ibid, at 102, para. 392.

⁵¹ Jensen, supra note 29 at 66; MAGNÚSSON, Bjarni Már, The Continental Shelf beyond 200 Nautical Miles: Delineation, Delimitation and Dispute Settlement (Leiden: Brill Nijhoff, 2015) at 98CrossRefGoogle Scholar.

⁵² Oude Elferink, supra note 9 at 306–7.

⁵³ Oxford English Dictionary Online, supra note 38.

⁵⁴ Ibid, “Detriment”, online: Lexico <https://www.lexico.com/definition/detriment>.

⁵⁵ Myron H. NORDQUIST, Neal R. GRANDY, Satya N. NANDAN and Shabtai ROSENNE, eds., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. II (Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1993) at 883; Oude Elferink, supra note 9 at 303.

⁵⁶ Oude Elferink and Johnson, supra note 28 at 464.

⁵⁷ Bangladesh/Myanmar, supra note 42 at 99, para. 376; Nicaragua v. Colombia, supra note 23 at 137, paras. 112–13; Somalia v. Kenya, supra note 44 at 31, para. 67.

⁵⁸ Nicaragua v. Colombia, at 137, para. 113; Somalia v. Kenya, at 31, para. 67.

⁵⁹ ELFERINK, Alex G. OUDE, “Causes, Consequences, and Solutions relating to the Absence of Final and Binding Outer Limits of the Continental Shelf”, in SYMMONS, Clive R., ed., Selected Contemporary Issues in the Law of the Sea (Leiden/Boston: Martinus Nihoff Publishers, 2011) 253 at 257Google Scholar.

⁶⁰ Oude Elferink and Johnson, supra note 28 at 464; Oude Elferink, supra note 59 at 257.

⁶¹ Serdy, supra note 9 at 365.

⁶² Oude Elferink, supra note 28 at 283.

⁶³ Busch, supra note 12 at 96; Oude Elferink, supra note 9 at 312.

⁶⁴ It is Eiriksson's view that “either something prejudices something or it doesn't; saying it isn't so doesn't make it not so”. See EIRIKSSON, Gudmundur, “The Case of Disagreement between a Coastal State and the Commission on the Limits of the Continental Shelf” in NORDQUIST, Myron H., MOORE, John N. and HEIDAR, Tomas, eds., Legal and Scientific Aspects of Continental Shelf Limits (Leiden/Boston: Martinus Nijhoff Publishers, 2004) 251 at 254Google Scholar.

⁶⁵ Busch, supra note 12 at 95–8.

⁶⁶ Ibid.

⁶⁷ Serdy, supra note 9 at 364.

⁶⁸ Ibid, 366.

⁶⁹ The submissions made by Argentina and the United Kingdom in 2009. See United Nations Division for Ocean Affairs and the Law of the Sea, supra note 27.

⁷⁰ In this regard, it is worth noting the approach of the ITLOS in Bangladesh/Myanmar. In this case, both states have not received the recommendations of the CLCS. Therefore, the existence of the entitlement is disputed. Prior to the delineation of the continental shelf beyond 200 nautical miles of both states, the ITLOS is required to examine whether both states have entitlement to the area beyond 200 nautical miles. It notes that the Tribunal “would be hesitant to proceed with the delimitation of area beyond 200 nm had it concluded that there was significant uncertainty as to the existence of a continental shelf margin in the area in question”, Bangladesh/Myanmar, supra note 42 at 115, para. 443.

⁷¹ The Government of Japan, “Japan's Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea: Executive Summary” (12 November 2008), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/jpn08/jpn_execsummary.pdf>.

⁷² Permanent Mission of China to the United Nations, “Note verbale dated 6 February 2009 by the Permanent Mission of China to the United Nations addressed to the United Nations Secretary-General (English trans.)” (February 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/jpn08/chn_6feb09_e.pdf>; Permanent Mission of South Korea to the United Nations, “Note verbale dated 27 February 2009 by the Permanent Mission of South Korea to the United Nations addressed to the United Nations Secretary-General” (February 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/jpn08/kor_27feb09.pdf>.

⁷³ Ibid.

⁷⁴ Ibid.

⁷⁵ Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Doc. CLCS/62 (20 April 2009), at 12, para. 59.

⁷⁶ Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Doc. CLCS/64 (1 October 2009), at 8, para. 26.

⁷⁷ Busch, supra note 12 at 1812.

⁷⁸ ELFERINK, Alex G. OUDE, “The Continental Shelf beyond 200 Nautical Miles: Relationship between the CLCS and Third Party Dispute Settlement” in ELFERINK, Alex G. OUDE and ROTHWELL, Donald R., eds., Oceans Management in the 21st Century: Institutional Frameworks and Responses (Leiden/Boston: Martinus Nihoff Publishers, 2004), 107 at 111CrossRefGoogle Scholar; International Law Association's Committee on the Legal Issues of the Outer Continental Shelf, First Report (2004) at 5; Magnússon, supra note 51 at 47–9.

⁷⁹ BREKKE, Harald and SYMONDS, Philip, “Submarine Ridges and Elevations of Article 76 in Light of Published Summaries of Recommendations of the Commission on the Limits of the Continental Shelf” (2011) 42(4) Ocean Development and International Law 289 at 290CrossRefGoogle Scholar.

⁸⁰ Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Doc. CLCS/62 (20 April 2009), at 12, para. 59.

⁸¹ The other justification may be that Article 9 of Annex II to UNCLOS refers to “matters relating to delimitation of boundaries” which covers other matters than those directly relates to delimitation. See Oude Elferink, supra note 59 at 256–7.

⁸² Oude Elferink, supra note 9 at 314–5.

⁸³ International Law Commission, Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties (2018), Conclusion 7(1).

⁸⁴ Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered in force on 27 January 1980), art. 31(1)(3)(b).

⁸⁵ The Government of Malaysia and the Government of the Socialist Republic of Vietnam, “Joint Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982 in respect of the southern part of the South China Sea, Part I: Executive Summary” (May 2009), online: UN <https://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/mys_vnm2009excutivesummary.pdf>.

⁸⁶ Ibid.

⁸⁷ Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, CLCS/64 (1 October 2009), at 19, para. 91.

⁸⁸ France, “The French Continental Shelf: Partial Submission to the Commission on the Limits of the Continental Shelf, pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea in respect of the area of Saint-Pierre-et-Miquelon: Part 1: Executive Summary (English Translation of the French Original)”, (16 April 2014), online: UN <https://www.un.org/depts/los/clcs_new/submissions_files/fra72_14/SPM_Summary_EN_April2014.pdf>.

⁸⁹ Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of the work in the Commission, CLCS/4 (17 September 1997), at 2, para. 11.

⁹⁰ Ibid, at 11–2, paras. 46–9.

⁹¹ BUGA, Irina, “Between Stability and Change in the Law of the Sea Convention: Subsequent Practice, Treaty Modification, and Regime Interaction” in ROTHWELL, Donald, ELFERINK, Alex OUDE, SCOTT, Karen and STEPHENS, Tim, eds., The Oxford Handbook of the Law of the Sea (Oxford: Oxford University Press, 2015) 46 at 66Google Scholar; BUGA, Irina, Modification of Treaties by Subsequent Practice (Oxford: Oxford University Press, 2018) at 189Google Scholar.

⁹² Ibid; SANDS, Philippe, “Article 39” in CORTEN, Olivier and KLEIN, Pierre, eds., The Vienna Conventions on the Law of Treaties (Oxford: Oxford University Press 2011), 962 at 973, para. 36Google Scholar; CRAWFORD, James, Brownlie's Principles of Public International Law, 9th ed. (Oxford: Oxford University Press 2019) at 372CrossRefGoogle Scholar.

⁹³ In a recently adopted document, the International Law Commission observed that “while there exists some support in international case law that, absent indications in the treaty to the contrary, the agreed subsequent practice of the parties theoretically may lead to modifications of a treaty, the actual occurrence of that effect is not to be presumed, and the possibility of amending or modifying a treaty by subsequent practice has not been generally recognized”. See International Law Commission, Draft Conclusions on Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties, with commentaries, A/73/10 (2018), 16 at 63, para. 38.

⁹⁴ Bangladesh/Myanmar, supra note 42 at 102, para. 392.

⁹⁵ Permanent Mission of India to the United Nations, “Note verbale dated 25 March 2009 by the Permanent Mission of India to the United Nations addressed to the Secretary-General of the United Nations” (March 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/idn08/clcs12_2008_ind_e.pdf>.

⁹⁶ Permanent Mission of New Zealand to the United Nations, “Note verbale dated 29 June 2009 by the Permanent Mission of New Zealand to the United Nations addressed to the Secretary-General of the United Nations” (June 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/cok23_09/cok23_nzl29jun09.pdf>.

⁹⁷ Permanent Mission of Fiji to the United Nations, “Note verbale dated 23 June 2006 by the Permanent Mission of Fiji to the United Nations addressed to the Secretary-General of the United Nations” (June 2006), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/nzl06/fiji_e.pdf>.

⁹⁸ Permanent Mission of Tonga to the United Nations, “Note verbale dated 8 April 2008 by the Permanent Mission of Tonga to the United Nations addressed to the Secretary-General of the United Nations” (April 2008), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/nzl06/tonga_e.pdf>.

⁹⁹ Permanent Mission of France to the United Nations, “Note verbale dated 13 July 2006 by the Permanent Mission of France to the United Nations addressed to the Secretary-General of the United Nations” (July 2006), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/nzl06/france_f.pdf>.

¹⁰⁰ Permanent Mission of Pakistan to the United Nations, “Note verbale dated 9 October 2014 by the Permanent Mission of Pakistan to the United Nations to the United Nations Secretariat” (October 2014), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/pak29_09/2014_10_09_PAK_NV_UN_003_14-00794.pdf>.

¹⁰¹ Permanent Mission of Oman to the United Nations, “Note verbale dated 10 November 2014 by the Permanent Mission of Oman to the United Nations addressed to the Secretary-General of the United Nations” (November 2014), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/idn08/clcs12_2008_ind_e.pdf>.

¹⁰² Permanent Mission of Indonesia to the United Nations, “Note verbale dated 30 April 2009 by the Permanent Mission of Indonesia to the United Nations addressed to the Secretary-General of the United Nations” (April 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/idn08/clcs12_2008_idn_e.pdf>.

¹⁰³ Permanent Mission of Portugal to the United Nations, “Note verbale dated 28 May 2009 by the Permanent Mission of Portugal to the United Nations addressed to the Secretary-General of the United Nations” (May 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/esp47_09/prt_re_esp2009.pdf>.

¹⁰⁴ Permanent Mission of Mexico to the United Nations, “Note verbale dated 21 August 2009 by the Permanent Mission of Mexico to the United Nations addressed to the Secretary-General of the United Nations” (August 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/cub51_09/mex_re_cub_clcs51_e.pdf>.

¹⁰⁵ Permanent Mission of Morocco to the United Nations, “Note verbale dated 10 March 2015 by the Permanent Mission of Morocco to the United Nations addressed to the Secretary-General of the United Nations” (March 2015), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/esp77_14/mor_re_esp77_eng.pdf>.

¹⁰⁶ Permanent Mission of Timor-Leste to the United Nations, “Note verbale dated 8 April 2008 by the Permanent Mission of Timor-Leste to the United Nations addressed to the Secretary-General of the United Nations” (April 2008), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/aus04/clcs_03_2004_los_tls.pdf>.

¹⁰⁷ Permanent Mission of Iceland to the United Nations, “Note verbale dated 24 August 2005 by the Permanent Mission of Iceland to the United Nations addressed to the Secretary-General of the United Nations” (August 2005), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/irl05/clcs_04_2005_isl.pdf>.

¹⁰⁸ Permanent Mission of Suriname to the United Nations, “Note verbale dated 7 August 2008 by the Permanent Mission of Suriname to the United Nations addressed to the Secretary-General of the United Nations” (August 2008), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/brb08/sur_aug_2008.pdf>.

¹⁰⁹ Permanent Mission of Barbados to the United Nations, “Note verbale dated 31 July 2009 by the Permanent Mission of Barbados to the United Nations addressed to the Secretary-General of the United Nations” (July 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/sur08/brb_re_sur_clcs15.pdf>.

¹¹⁰ Permanent Mission of Trinidad and Tobago to the United Nations, “Note verbale dated 29 April 2009 by the Permanent Mission of Trinidad and Tobago to the United Nations addressed to the Secretary-General of the United Nations” (April 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/sur08/tto_re_sur_2009.pdf>.

¹¹¹ Permanent Mission of the United Kingdom to the United Nations, “Note verbale dated 9 August 2010 by the Permanent Mission of the United Kingdom to the United Nations addressed to the Secretary-General of the United Nations” (August 2010), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/mdv53_10/gbr_re_mdv_2010.pdf>.

¹¹² Permanent Mission of Tonga to the United Nations, “Note verbale dated 8 April 2008 by the Permanent Mission of Tonga to the United Nations addressed to the Secretary-General of the United Nations” (April 2008), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/nzl06/tonga_e.pdf>.

¹¹³ Permanent Mission of France to the United Nations, “Note verbale dated 13 July 2006 by the Permanent Mission of France to the United Nations addressed to the Secretary-General of the United Nations” (July 2006), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/nzl06/france_f.pdf>.

¹¹⁴ Permanent Mission of Pakistan to the United Nations, “Note verbale dated 9 October 2014 by the Permanent Mission of Pakistan to the United Nations to the United Nations Secretariat” (October 2014), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/pak29_09/2014_10_09_PAK_NV_UN_003_14-00794.pdf>.

¹¹⁵ Permanent Mission of Oman to the United Nations, “Note verbale dated 10 November 2014 by the Permanent Mission of Oman to the United Nations addressed to the Secretary-General of the United Nations” (November 2014), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/idn08/clcs12_2008_ind_e.pdf>.

¹¹⁶ Permanent Mission of Indonesia to the United Nations, “Note verbale dated 30 April 2009 by the Permanent Mission of Indonesia to the United Nations addressed to the Secretary-General of the United Nations” (April 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/idn08/clcs12_2008_idn_e.pdf>.

¹¹⁷ Permanent Mission of Portugal to the United Nations, “Note verbale dated 28 May 2009 by the Permanent Mission of Portugal to the United Nations addressed to the Secretary-General of the United Nations” (May 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/esp47_09/prt_re_esp2009.pdf>.

¹¹⁸ Permanent Mission of Mexico to the United Nations, “Note verbale dated 21 August 2009 by the Permanent Mission of Mexico to the United Nations addressed to the Secretary-General of the United Nations” (August 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/cub51_09/mex_re_cub_clcs51_e.pdf>.

¹¹⁹ Permanent Mission of Morocco to the United Nations, “Note verbale dated 10 March 2015 by the Permanent Mission of Morocco to the United Nations addressed to the Secretary-General of the United Nations” (March 2015), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/esp77_14/mor_re_esp77_eng.pdf>.

¹²⁰ Permanent Mission of Timor-Leste to the United Nations, “Note verbale dated 8 April 2008 by the Permanent Mission of Timor-Leste to the United Nations addressed to the Secretary-General of the United Nations” (April 2008), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/aus04/clcs_03_2004_los_tls.pdf>.

¹²¹ Permanent Mission of Iceland to the United Nations, “Note verbale dated 24 August 2005 by the Permanent Mission of Iceland to the United Nations addressed to the Secretary-General of the United Nations” (August 2005), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/irl05/clcs_04_2005_isl.pdf>.

¹²² Permanent Mission of Suriname to the United Nations, “Note verbale dated 7 August 2008 by the Permanent Mission of Suriname to the United Nations addressed to the Secretary-General of the United Nations” (August 2008), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/brb08/sur_aug_2008.pdf>.

¹²³ Permanent Mission of Barbados to the United Nations, “Note verbale dated 31 July 2009 by the Permanent Mission of Barbados to the United Nations addressed to the Secretary-General of the United Nations” (July 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/sur08/brb_re_sur_clcs15.pdf>.

¹²⁴ Permanent Mission of Trinidad and Tobago to the United Nations, “Note verbale dated 29 April 2009 by the Permanent Mission of Trinidad and Tobago to the United Nations addressed to the Secretary-General of the United Nations” (April 2009), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/sur08/tto_re_sur_2009.pdf>.

¹²⁵ Permanent Mission of the United Kingdom to the United Nations, “Note verbale dated 9 August 2010 by the Permanent Mission of the United Kingdom to the United Nations addressed to the Secretary-General of the United Nations” (August 2010), online: UN <https://www.un.org/Depts/los/clcs_new/submissions_files/mdv53_10/gbr_re_mdv_2010.pdf>.

¹²⁶ For example, the Agreed Minutes signed by the Ministers of Foreign Affairs of Denmark, Norway and Iceland together with the Prime Minister of Faroes on the delimitation of the continental shelf in the southern part of the Banana Hole of the Northeast Atlantic (2006); the Agreed Minutes between Iceland, Denmark (Faroe Islands) and Norway on the delimitation of the continental shelf beyond 200 nautical miles in the Ægir Basin area (2006); the Memorandum of Understanding between Kenya and Somalia to grant to each other no-objection in respect of submission to the Commission on the Limits of the Continental shelf (2009); the Agreement between Tanzania and Seychelles concerning the Consideration of Submissions to the United Nations Commission on the Limits of the Continental Shelf; the Exchange of Notes dated 15 March 2012 between Denmark and Canada concerning the submissions in the Labrador Sea (2012); the Agreed Minutes between Denmark and Iceland on the Delimitation of the Continental Shelf beyond 200 nautical miles in the Irminger Sea (2013); the agreement between Benin, Côte d'Ivoire, Ghana, Nigeria and Togo (2009). The executive summaries of the submissions made by several states also indicate that they reached a non-objection agreement such as the agreements to not object the consideration of their submissions in respect of the Arctic Ocean between Russia-Denmark (Greenland) and Russia-Canada; the agreement between Suriname and France, Barbados, Guyana, Trinidad and Tobago and Venezuela; and the agreement between Sri Lanka and India. Similar agreements were also reached after the submission was made, for example, the agreement between Micronesia and Palau (2019), and the agreement between Pakistan and Oman.

¹²⁷ The location of baselines is an essential factor during the consideration of the submission by the CLCS (Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, Doc. CLCS/11 (13 May 1999), at 28–30). However, the CLCS itself recognizes that it is not empowered by the CLCS to consider whether the baselines are determined in accordance with UNCLOS (ibid.). This means that if a dispute exists between the coastal State and other state on the validity of baselines, the CLCS is unable to consider the submission and to formulate recommendations. Until now, although disputes concerning the validity of baselines are not uncommon, no submission has been subject to a deferral under Paragraph 5(a) due to the existence of such disputes.

¹²⁸ UNCLOS, Annex II, art. 2(2).

¹²⁹ Among 59 experts who have been currently or formerly members of the Commission, all have expertise on natural sciences such as geology, geophysics, or hydrography; very few among them have a degree on law (Mr. Yuri Borisovitch Kazmin (Russia) and Mr. De Landro-Clarke, Wanda-Lee (Trinidad and Tobago).

¹³⁰ RoP, Rule 57.

¹³¹ Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of the work in the Commission, Doc. CLCS/4 (17 September 1997), at 4, para. 19.

¹³² Letter dated 15 March 1999 from the Chairman of the Commission on the Limits of the Continental Shelf addressed to the Legal Counsel, Under-Secretary-General of the United Nations for Legal Affairs, Doc. CLCS/13 (18 May 1999).

¹³³ Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of the work in the Commission, Doc. CLCS/44 (3 May 2005), at 3, para. 13.

¹³⁴ NELSON, L. D. M., “The Continental Shelf: Interplay of Law and Science” in ANDO, Nisuke, MCWHINNEY, Edward, WOLFRUM, Rüdiger and Röben, Betsy Baker, eds., Liber Amicorum Judge Shigeru Oda, Vol. II (The Hague/London/New York: Kluwer Law International, 2002), 1235 at 1238Google Scholar.

¹³⁵ It is likely that before the official adoption of any modification to the Paragraph, the CLCS will submit the draft to the Meeting of States Parties for feedback. This was the way it did when it adopted the current Paragraph 5(a). All states parties will have a chance to express their views.