Oceans and Law of the Sea

Issues with respect to article 4 of Annex II to the Convention
(ten-year time limit for submissions)

SPLOS/183 - Decision [of the eighteenth Meeting of States Parties] regarding the workload of the Commission on the Limits of the Continental Shelf and the ability of States, particularly developing States, to fulfil the requirements of article 4 of Annex II to the Convention, as well as the decision contained in SPLOS/72, paragraph (a).

  • SPLOS/INF/20 - "Issues related to the workload of the Commission on the Limits of the Continental Shelf — tentative dates of submissions"
    (Please note a typographical error in the annex for Cape Verde: for "By April 2008" read "By April 2009".)

  • SPLOS/INF/20/Add.1  - Addendum - Issues related to the workload of the Commission on the Limits of the Continental Shelf — tentative dates of submissions

  • SPLOS/INF/20/Add.2  - Addendum - Issues related to the workload of the Commission on the Limits of the Continental Shelf — tentative dates of submissions

SPLOS/72  - Decision regarding the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to the United Nations Convention on the Law of the Sea (29 May 2001) 

Background information (as at 2001)

     Under article 4 of annex II to the Convention, a coastal State intending to establish the outer limits to its continental shelf beyond 200 nautical miles is obligated to submit particulars of such limits to the Commission on the Limits of the Continental Shelf along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of the Convention for that State.

     At the tenth Meeting of States Parties, concerns had been voiced by developing States regarding the difficulty of complying with the time limit in article 4 of annex II to the Convention. The Meeting had expressed general support for the concerns raised and decided to include in the agenda for the eleventh Meeting the item “Issues with respect to article 4 of annex II to the United Nations Convention on the Law of the Sea”. It also requested the Secretariat to prepare a background paper on the matter.

     In addition to the document prepared by the Secretariat (SPLOS/64), the eleventh Meeting of States Parties also had before it notes verbales from the Government of Seychelles regarding the extension of the time period for submissions to the Commission (SPLOS/66) and a position paper (SPLOS/67) on the time frame for submissions put forward by the following States members of the Pacific Island Forum: Australia, Fiji, Marshall Islands, Micronesia (Federated States of), Nauru, New Zealand, Papua New Guinea, Samoa, Solomon Islands, Tonga and Vanuatu.

    The representative of the Federated States of Micronesia, introducing the position paper, emphasized the complexity of the task of preparing submissions to the Commission on the Limits of the Continental Shelf, which required significant resources, capacity and expertise to carry out the necessary activities such as the collection, collation and analysis of a large amount of bathymetric, seismic and geophysical data. He pointed out that a crucial theme of the Convention was that developing States should not, through lack of resources or capacity, be disadvantaged in respect of access to or use of their resources. Therefore, it would be inconsistent with the general approach of the Convention if developing States were unable to define the limits of their extended continental shelf owing to a lack of resources or capacity. In that regard, he emphasized that the Convention contained important provisions on transfer of technology so as to ensure that developing States were able to exercise their rights and fulfil their obligations under the Convention.

     He emphasized that many countries would not be able to make a submission within the 10-year time frame stipulated in the Convention for reasons of capacity, financial and technical resources; the lack of settlement of key jurisdictional boundaries and the complexity of the technical issues involved. Furthermore, States had had a clear idea of how to prepare their submissions only after the Commission had adopted its Scientific and Technical Guidelines on 13 May 1999. The representative recalled that the election of the members of the Commission had not taken place until May 1997, nearly three years after the entry into force of the Convention. In the light of the foregoing, the Pacific Island Forum States proposed the following:

          (a)     That the States Parties agree to extend the 10-year period prescribed in annex II, such an extension to be agreed through a decision of the Meeting of States Parties or through an understanding on the interpretation of annex II;

          (b)     Such an understanding would include an agreement that the 10-year period would not begin to run for any State Party, regardless of its date of ratification or accession, until the date of adoption of the Commission’s Guidelines;

          (c)     The time for making a submission would be further extended beyond 10 years where a State Party had been unable, for technical reasons, including lack of technical capacity, to comply in good faith with the time limitation (SPLOS/67, para. 8).

     Many delegations agreed that the development and strengthening of the capabilities of developing States, including small island developing States, in order to enable them to benefit fully from the legal regime for the oceans as established by the Convention, was an issue of crucial importance. They supported the arguments put forward in the position paper of the Pacific Island Forum States that the Meeting of States Parties should consider issues with respect to article 4 of annex II and take such a decision on the starting date for the calculation of the 10-year time period for making submissions, which would ameliorate the difficulty in complying with the 10-year deadline envisaged in the Convention.

     The Meeting generally supported a step-by-step approach to the issues raised with respect to article 4 of annex II to the Convention. The first step was to address the issue of selecting the date for calculating the 10-year time limit, which could be done at the present Meeting of States Parties. The second step was to deal with the issue of a possible extension of the
10-year time limit, which required a sound legal solution on the substance of the matter and on the procedures to be followed.

     Many delegations agreed that the starting date should be 13 May 1999, the date of adoption of the Scientific and Technical Guidelines, which also marked the completion of the three basic documents of the Commission; the other two being its Rules of Procedure and its modus operandi. They pointed out that the Guidelines gave clear and detailed guidance to States as to the procedures to be followed in the preparation of submissions to the Commission and to the particulars that would be expected to be included in such submissions. One delegation emphasized that the adoption of the Guidelines was not a prerequisite or a condition for making submissions by States, and that States should avoid taking on any additional obligations not included in the Convention.

     Some delegations pointed out that there was no legal consequence stipulated by the Convention if a State did not make a submission to the Commission. Several delegations underscored the principle that the rights of the coastal State over its continental shelf were inherent, and that non-compliance with the 10-year time period specified in article 4 of annex II would not adversely affect those rights, which did not depend on occupation, effective or notional, or any express proclamation, as stated in article 77, paragraph 3, of the Convention.

     On the issue of a possible further extension beyond 10 years of the time period for making submissions to the Commission, as proposed by the Pacific Island Forum States (SPLOS/67, para. 8 (c)), several delegations recognized that such an extension would accommodate the needs of developing countries, which lacked the requisite expertise and resources to fulfil the requirements of article 4 of annex II within the prescribed period. A number of other delegations were of the view that at the current stage the adoption of the decision that the 10-year period would not begin to run for any State Party, regardless of its date of ratification or accession, until the date of adoption of the Commission’s Guidelines, would have already ameliorated substantially the situation for the first group of States by extending their deadline, in fact, for an additional five years. The delegations agreed that meanwhile further discussions were needed on the issue of the ability of States, particularly developing States, to fulfil the requirements of article 4 of annex II to the Convention.

     Some delegations were of the view that a coastal State which for economic, financial or technical reasons was able to make only a partial submission within the 10-year time period should be viewed as having complied with the requirements of article 4 of annex II to the Convention.

     The procedural issue of how to give effect to any decision extending the 10-year time period was also discussed. Four possible procedures were put forward. They were similar to what was outlined in the background paper by the Secretariat (SPLOS/64, paras. 71-75):

          (a)     An amendment in accordance with article 312 of the Convention;

          (b)     An amendment by means of the simplified procedure provided for in article 313;

          (c)     An agreement relating to the implementation of article 4 of annex II to the Convention;

          (d)     A decision by the Meeting of States Parties along the lines of the procedure used by the Meeting regarding the postponement of the election of the members of the Tribunal and of the members of the Commission on the Limits of the Continental Shelf.

     Many delegations were of the view that it fell within the competence of the Meeting of States Parties to adopt by consensus a decision expressing general agreement on the starting date for calculating the 10-year time period. Such a decision, they stated, would be of a procedural nature similar to the ones the Meeting had taken with respect to the postponement of the election of members of the International Tribunal for the Law of the Sea and that of the members of the Commission. However, one delegation was of the view that the issue of the starting date was of direct relevance to the rights and obligations of States Parties to the Convention and therefore could not be considered as simply procedural.

     With respect to a possible decision, the Chairman of the Commission on the Limits of the Continental Shelf stated that the 10-year deadline was a matter that fell within the competence of States; the Commission would be guided by whatever deadline was decided upon by the States Parties on the condition that the decision was legally correct. In response, some delegations, while acknowledging the independent nature of the Commission, pointed out that the Commission had been established by the Convention, of which the States Parties were the custodians. In that regard, they underscored the importance of any decision taken by the Meeting of States Parties on the matter.

     In the light of the discussions and of a proposal put forward by Papua New Guinea, an open-ended Working Group was convened by the President. A draft decision was prepared by the Group (SPLOS/L.22), which was subsequently adopted by the Meeting of States Parties (SPLOS/72). The decision provides that, for a State for which the Convention entered into force before 13 May 1999, the date of commencement of the 10-year time period for making submissions to the Commission is 13 May 1999.

     There was general agreement that States that were in a position to do so should make every effort to make submissions within the time period established by the Convention. In that regard, it was pointed out that the deferral of the deadline should not place an undue burden on those States that were ready to make their submissions by requiring them to present new data at that time.

     Many delegations pointed out that the issue of training and transfer of technology was closely linked to the discussions on the time period for making submissions to the Commission. Some stated that capacity-building was of vital importance irrespective of the decision on the starting date for the 10-year period and a possible decision on the extension of that period.

     Many delegations noted with satisfaction the establishment of a trust fund and the contribution that had been made to it so far. They expressed the hope that further contributions would be made to the fund. Referring to the statement by the Chairman of the Commission on the lack of a mandate on the part of the Commission to conduct training, some delegations emphasized the need for the relevant institutions to actively support training activities. It was suggested that cooperation between the Commission, regional centres of excellence and the United Nations University should be pursued.

Prepared by the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations.

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