As if it was not already busy enough, the workload of the Commission on the Limits of the Outer Continental Shelf just got much bigger. The deadline for those states who became a party to the Law of the Sea Convention prior to 13 May 1999 to make their submissions to the Commission was on 13 May 2009. Twenty-eight submissions were made to the Commission in the month before the deadline, bringing the grand total of submissions to fifty. That is not to mention the preliminary information submitted by a score of other countries in accordance with the decision of the States Parties at their eighteenth meeting in June 2008 which allowed states to meet the deadline by indicating their intention to make a submission and by providing preliminary information.
To put these figures in context, since the first submission was made by Russia in December 2001, the Commission has made only eight recommendations. This is partly due to the fact that the Commission is not a permanent body and it only meets for a couple of weeks each year. Following the current practice, it is therefore likely that it will take a number of years before the Commission gets through the current batch of submissions.
What happens in the meantime for those states who have made a submission? As legal title to the outer continental shelf is based on natural prolongation, rather than express proclamation, it would seem that coastal states could authorise the exploitation of their outer continental shelf before the Commission makes any recommendations on the outer limit. However, this raises problems where the precise limits of the outer continental shelf are unclear. It is possible that a state may incur legal liability if it authorises exploitation in an area which later turns out to be beyond its limits of national jurisdiction. Thus, states may wish to wait until the Commission has made its recommendations until they authorise any activities on their outer continental shelf. For those states at the end of the queue, they may be waiting a long time.
There are several measures that the States Parties could take to improve the turnaround of submissions to the Commission. For instance, they could increase the number of meetings that the Commission has each year. Indeed, they could even make the Commission a quasi-permanent body. Alternatively, they could also increase the size of the Commission. This would require a modification to the Law of the Sea Convention which may be difficult to agree upon. However, such modifications are not within precedent, for example the extension of the deadline for submissions to the Commission which was agreed by the Meeting of the States Parties in decision SPLOS/72. Another possibility is that they could reduce the size of the sub-commissions which consider each submission from the current size of seven members . Whilst the Law of the Sea Convention suggests that sub-commissions should be composed of seven members, it leaves the actual size to the discretion of the Commission itself. Of course, all of these alternatives have resource implications. Any increase in activity in the Commission would also require more facilities to be laid on at the United Nations headquarters. It is questionable whether in a time of worldwide financial slowdown, states would be happy about increasing the resources available to the Commission. It should also be borne in mind that the costs for supporting attendance of Commission members is borne by the sponsoring state. For those developing countries who have sponsored Commission members, these costs may also be difficult to meet if the activity of the Commission is increased. Whilst the establishment of a trust fund in 2000 was a positive step to assist developing countries in defraying these costs, its success depends on other States Parties actually making sustained contributions. Another possibility is to consider changing the funding for Commission members so that their participation is paid from a fund to which all States Parties contribute. This approach is already taken for the budget for the International Tribunal for the Law of the Sea. Again, this would require a modification to the Law of the Sea Convention. Yet, not only would such a change spread the financial burden amongst all States Parties, it would also promote the independence of Commission members who would not rely on their own governments for their participation in Commission meetings.
It is questionable whether any of these measures will be acceptable to states. We will have to wait and see. The question of the workload of the Commission will be considered at the next meeting of the States Parties in June 2009.
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