WANG Danwei

Abstract:Article 76 of the United Nations Convention on the Law of the Sea(hereinafter“Convention”) does not specifically stipulate the rules of the bridging lines:it simply requires the length of the lines,without mentioning how or in what order to connect those lines.To maximize national interests,coastal States often utilise this equivocal regulation to demarcate the outer edges of the continental shelf beyond a reasonable range,and sometimes even invade the international seabed area.In order to establish fair and reasonable rules of bridging lines and to further simplify the practice of delimitation of the outer limits of the continental shelf,the Commission on the Limits of the Continental Shelf (hereinafter“Commission”)concluded a set of methods,including the intersection method and the vertical method for constructing the last segment as well as methods for other bridging lines.The study of rules of bridging lines is of both theoretical and practical importance:(1) in theory,it helps to form correct understandings of the procedures for determining the outer limits of the continental shelf,of the committee and its recommendations,and of rules of bridging lines;(2) it can meet the actual needs of China when delimitating the outer limits of the continental shelf in the East China Sea in the future or in other sea areas such as the South China Sea.

Key Words:Outer limits of the continental shelf;Rules of bridging lines;The Commission’s recommendations;Treaty interpretation

The outer limits of the continental shelf constructed in accordance with Article 76,paragraph 4,of the Convention are often not straight,as the continental margin may comprise a tortuous ridge,sea platform,bay,canyon,etc.1Øystein Jensen,The Commission on the Limits of the Continental Shelf:Law and Legitimacy,Leiden:Brill Nijhoff,2014,p.73.These lines are often curved lines,established in accordance with the sediment thickness formula specified in Article 76,para.4(a)(1) of the Convention,which is also known as the Gardiner formula or Irish formula.The limits may also be continuous arcs.2Established under the distance criterion specified in para.4(a)(2) of Article 76,which is also known as the Hedberg formula,these lines are mostly arcs.Paragraph 7 of the same article simplifies this problem by stating:“[t]he coastal State shall delineate the outer limits of its continental shelf,where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured,by straight lines not exceeding 60 nautical miles in length,connecting fixed points”.3The“fixed point”in paras.4,5 and 7 of Article 76 refers to the points that are beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured,but not exceed two boundaries:the first boundary set out in Para.5 of Article 76 should not exceed the 350 nautical miles distance line from the baseline mentioned above,and the other boundary should not exceed 100 nautical miles from the 2500 m isobath.In practice,the aforementioned lines are named as“bridging lines”.4Serdy Andrew,The Commission on the Limits of the Continental Shelf and its Disturbing Propensity to Legislate,International Journal of Marine and Coastal Law,Vol.26(3),2011,p.371.Although this provision simplifies the shape of the outer limits of the continental shelf,which do not have to accurately abide by the complex details or jagged features of the continental shelf,5Peter J.Cook and Chris M.Carleton eds.,Continental Shelf Limits:the Scientific and Legal Interface,translated by LÜ Wenzheng et al.,Beijing:China Ocean Press,2012,p.23.(in Chinese)the area included according to the rules may exceed the scope of the outer continental shelf specified in the Convention.Some scholars refer to such areas as“shaded areas”.6Bill Hirst,Brian Murphy and Philip Collier,An Overview of Australian Maritime Zone Boundary Definition,at http://webmap.ga.gov.au/pdf/auslig/hirst-lawofthesea.pdf,19 April 2017.Applying the bridging rule is the last step in determining the outer limits of the continental shelf.Therefore,relevant research is of practical significance.

I.The Practice of Rules of Bridging Lines

The outer continental shelf of a coastal State should be a closed area.The fixed point that satisfies appurtenance test7The appurtenance test means that the coastal State must first prove that the edge of its continental margin extends beyond 200 nautical miles from the baseline from which the breadth of the territorial sea is measured before constructing the outer edge of the continental margin in accordance with the formula of Article 76,para.4.See Art.76,para.4(a) and para.2.2 of the Scientific and Technical Guidelines of the Commission.should be on the outer edge of the continental margin that extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.There thus arises the general technical problem of connecting the formula line of the outer edge of the continental margin with the 200 M limit line in accordance with paragraph 4 of Article 76,namely,the bridging problem of the last segment in the recommendations of the Commission on the Limits of the Continental Shelf.In fact,the last segment also refers to the connection of the first fixed point and the 200 M limit line.The last segment thereby means both the first and the final segments.Neither the Convention nor the Scientific and Technical Guidelines of the Commission (hereinafter“Guidelines”)provide a method of how to connect the last segment.In addition,there also arises the problem of connection when coastal States apply paragraph 7 of Article 76.This paper summarizes these two types of problems as“the last segment problem”and“other bridging problems”.

A.Problems Arising

According to paragraph 7 of Article 76,it is clear that the Convention only provides the type and length of bridging lines.Other issues such as connecting methods or the connecting order of fixed points are overlooked.Thelast segment problemfirst appeared in the submissions to the Commission by Australia.On 15 November 2004,Australia submitted its proposal on the outer limits of the continental shelf of Australia through the Secretary-General to the Commission.Of the nine regions it claims,eight involve the last segment problem.Taking the Great Australian Bight as an example,Australia intends to bridge point 2 and point 88 respectively with the 200 M limit line with a straight line of no more than 60 M in length.The intersecting points on the 200 M limit line are point 1 and point 89,thus the bridging lines enclose an area of the outer continental shelf.This method creates a triangular area with the formula line (shown in Fig.1A),8Continental Shelf Submission of Australia,at https://www.un.org/Depts/los/clcs_new/submissions_files/aus04/Documents/aus_doc_es_web_delivery.pdf,19 October 2017.which comprises the“shaded area”mentioned above.

Fig.1A.The outer limit of the continental shelf of Australia claimed in the Great Australian Bight region (Point 1 and Point 89 involve bridging problems)

This is the earliest case of the last segment problem.The Commission questioned the connection method adopted by Australia,however,as neither the Convention nor the Guidelines provides specific rules,the Commission hoped that they could reach an agreement with the coastal States on the connection method and its relation to the continental shelf rights beyond 200 nautical miles.9Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission,CLCS/50,para.29.During the examination of this submission,France,Ireland,Spain and the United Kingdom and Northern Ireland jointly made a submission on the limits of the continental shelf in respect of the area of the Celtic Sea and the Bay of Biscay on 19 May 2006(hereinafter“joint submission”),which encountered the same problem.

The joint submission is the sixth submission received by the Commission and the first joint case.10At http://www.un.org/Depts/los/clcs_new/commission_submissions.htm,30 October 2017.In addition to the undetermined method of the connection of bridging lines,the Commission also needs to determine the principles and methods applicable to the joint submission.Judging from their final recommendations,the Commission agreed that the four countries should use a geometric method for handling the last segment issue.At the same time,in light of paragraph 4(a)of Article 76 and the submission made by Australia during the same period,the Commission established the second method to link the last segment.Thus,the two connection methods concerning“the last segment problem”were first written into the recommendations of the Commission for the submission made by Australia.

B.The Last Segment Problem

The submission made by Australia is the third submission received by the Commission.11At http://www.un.org/Depts/los/clcs_new/commission_submissions.htm,31 October 2017.Of the nine regions submitted,eight involved the last segment problem,namely,Argo,Great Australian Bight,Kerguelen Plateau,Lord Howe Rise,Macquarie Ridge,Naturaliste Plateau,South Tasman Rise,and the Wallaby and Exmouth Plateaus.Australia utilises the method of a radius.In other words,the last fixed point on the outer edge of the continental margin is the center of a circle and a straight line no more than 60 M is the radius;the latter intersects with the 200 M limit line,and the point on the seaside is selected as the fixed point (Fig.1B).The Commission disagreed with the method submitted by Australia since“this method creates an area of continental shelf that falls outside of the continental margin as defined in Article 76,paragraphs 4 and 7.”12CLCS,Recommendations of the Commission on the Limits of the Continental Shelf (CLCS)in Regard to the Submission Made by Australia on 15 November 2004,adopted by the Commission on 9 April 2008,paras.42,60,87,110,126,150,175,and 226.

Fig.1B.The outer limit of the continental shelf of Australia recommended by the Commission in the Great Australian Bight region

The position of the committee has been opposed by some scholars.British scholar Serdy believes that paragraph 7 of Article 76 does not exclude the method of using a straight line 60 M to connect the last fixed point of the outer limit of the continental shelf to any point on the 200 M limit line to obtain the maximum enclosed area.13Andrew Serdy,The Commission on the Limits of the Continental Shelf and its Disturbing Propensity to Legislate,The International Journal of Marine and Coastal Law,Vol.26,2011,p.373.In 2012,Australia emphasized that the outer edges of the continental shelf in some areas have not yet been established and are subject to a follow-up,including the Wallaby and Exmouth Plateaus region and the Kerguelen Plateau region that involve bridging problems.14Øystein Jensen,The Commission on the Limits of the Continental Shelf:Law and Legitimacy,Leiden:Brill Nijhoff,2014,p.76.This occurred when submitting charts and relevant information on the outer limits of the continental shelf through the Secretary-General of the United Nations,in accordance with paragraph 9 of Article 76.

The problem shown in the submission made by Australia reflects two types of conflicts among provisions.The first exists between Article 76,paragraphs 4 and 7.The other exists between the aforementioned two paragraphs and paragraphs 1 and 3.Jensen proposed two reasons for interpreting the Commission’s recommendations:first,paragraphs 1 and 3,as major clauses,have priority in the application,while the application of paragraph 7 may result in the outer continental shelf of a coastal State encompassing the deep ocean floor beyond the scope of paragraph 1 and 3.Secondly,the purpose of paragraph 7 is to make the delimitation of outer limits simple and operational,rather than allow the coastal States to claim the largest possible area of the outer continental shelf area.15Øystein Jensen,The Commission on the Limits of the Continental Shelf:Law and Legitimacy,Leiden:Brill Nijhoff,2014,p.77.

In the submission made by the four States,they put forward 31 fixed points for determining the outer limits of the continental shelf in the region.Fixed point 30 (FP 30) is extended from the continental slope foot 5 (FOS 5) and determined according to the sediment thickness formula.Fixed point 31 (FP 31) is the external limit point obtained by bridging the FP 30 with the 200 M limit line of Spain in a straight line not exceeding 60 M under paragraph 7 of Article 76 (Fig.2A).16Joint Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76(8) of the United Nations Convention on the Law of the Sea 1982 in Respect of the Area of the Celtic Sea and the Bay of Biscay,Executive Summary,Appendix 1,List of coordinates defining the outer limit of the extended continental shelf in the Celtic Sea and Bay of Biscay area.This segment forms a“shaded zone”with the line 350 M of Ireland and the 200 M limit line of Spain (Fig.2B).17Joint Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76(8) of the United Nations Convention on the Law of the Sea 1982 in Respect of the Area of the Celtic Sea and the Bay of Biscay,Executive Summary,Appendix 1,List of coordinates defining the outer limit of the extended continental shelf in the Celtic Sea and Bay of Biscay area.

Fig.2A.The outer limits of the continental shelf in the Celtic Sea and the Bay of Biscay claimed by the four States (FS 31 involves bridging problems)

Fig.2B.Two methods recommended for the last segment of outer limits of the continental shelf in the Celtic Sea and the Bay of Biscay

The legality of FP 30 was first questioned:(a) paragraphs 2 and 3 of Article 76 provide that,“the continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6;the continental margin comprises the submerged prolongation of the land mass of the coastal State,and consists of the seabed and subsoil of the shelf,the slope and the rise.It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof”.(b) FP 30 is an external point extended from the FOS 5 and determined according to the sediment thickness formula.(c) FOS 5 is the point on the foot of slope at the outer edge of the continental shelf of Ireland,the United Kingdom and France,that is,the continental shelf extending according to FOS 5 and FP 30 is a natural extension of Ireland,the United Kingdom and France.(d) FP 30 is located outside the line 350 M of Ireland,the United Kingdom and France;it,therefore,does not meet the requirements for the inspection of ownership of coastal continental shelf.In all,the legal status of the FP 31 obtained based on the FP 30 is also questionable.

C.Other Bridging Problems

Other bridging problems first appeared in the South Fiji Basin area in the submission put forward by New Zealand in 2006.The“shaded area”established by New Zealand using bridging lines is a bag-shaped area with a narrow top and a wide width.18New Zealand Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76(8) of the United Nations Convention on the Law of the Sea,Executive Summary,Fig.NZ-ES-6.1.New Zealand connects formula point N205 on the east side of the“bag”directly with formula point N206 on the west side with a line not exceeding 60 M in length,19N205 (26o47'03.36"S,177o17'49.06"E),N206 (26o37'02.36"S,176o13'44.53"E);the distance between N205 and N206 is 58.2601 M.After alteration,N205 becomes N177 (26o87'90.27"S,177o26'70.60"E),and N206 becomes N178 (26o62'48.22"S,176o22'90.35"E),the distance 57.790 M.and the entire bag-shaped area is claimed as the outer limits of the continental shelf (Fig.3A).

However,the Commission does not endorse such a method20CLCS,Summary of the Recommendations of the Commission on the Limits of the Continental Shelf (CLCS) in Regard to the Submission Made by New Zealand on 19 April 2006,adopted by the Commission on 22 August 2008,para.148.because,although the distance between the two formula points is not more than 60 M,there is a large area in the south of the South Fiji Basin that spreads more than 60 M from east to west.Since the formula line that encircled the entire area has exceeded 60 M,the outer limits drawn by New Zealand violate the provisions of Article 76.The Commission,therefore,emphasized in their final recommendations that the central part of the South Fiji Basin belongs to the international seabed area (hereinafter“Area”).21CLCS,Summary of the Recommendations of the Commission on the Limits of the Continental Shelf (CLCS) in Regard to the Submission Made by New Zealand on 19 April 2006,adopted by the Commission on 22 August 2008,Fig.3.

Fig.3A.The outer limits of the continental shelf in South Fiji Basin claimed by New Zealand (N205 and N206 involve bridging problems)

The difference between the last segment problem and other bridging problems is that the bridging lines used by New Zealand meet the requirements of Article 76,paragraph 4(a)(2);the first type of conflicts mentioned above does not exist.However,the Commission pointed out that the“shaded area”constructed by New Zealand has the characteristics of deep oceanic oceans and thus belongs to the Area;the second type of conflicts thus still prevails.Jensen believes that the criterion for the Commission to judge whether the“shaded area”is reasonable depends on its“scale”.22Øystein Jensen,The Commission on the Limits of the Continental Shelf:Law and Legitimacy,Leiden:Brill Nijhoff,2014,p.81.I,however,believe that we need to first decide whether paragraph 7 of Article 76 stipulates that the fixed points must be connected in a certain order.New Zealand ignores several bridging lines in the basin,and directly connects lines not more than 60 M at the mouth of the“bag”.The same situation also occurred in the Shikoku Basin region in the submission made by Japan.

Japan claims that the submerged prolongation of the land mass from the east to the west is beyond 200 M and overlaps with each other.23CLCS,Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Japan on 12 November 2008,adopted by the Commission,with amendments,on 19 April 2012,para.164 and Fig.27.Therefore,the outer continental shelf in this area is a closed area surrounded by 200 nautical miles.24In its executive summary,Japan used the line 200 M as the outer limit of the continental shelf of the Shikoku Basin Region,so there are no fixed points.See Japan’s Submission to the Commission on the Limits of the Continental Shelf Pursuant to Article 76,para.8 of the United Nations Convention on the Law of the Sea,Executive Summary,Fig.6.7 and Appendix.In addition,the line 200 M in the southern part also involves the legal status of the Okinawa Reef,but this paper will not elaborate further.Among them,the northern end is bridged with the western continental margin and the eastern continental margin by a line more than 60 M (Fig.4A).The Commission also rejected this method and recommended there should be a“shaded area”in this area (Fig.4B).25Japan’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,Fig.6.7 and Appendix.

Fig.4A.The outer limits of the continental shelf claimed by Japan in the Shikoku Basin Region

Fig.4B.The outer limits of the continental shelf recommended by the Commission in the Shikoku Basin Region

II.The Commission’s Interpretation of Rules of Bridging Lines

Article 76,paragraph 7 merely provides“minimum requirements”26Peter J.Cook and Chris M.Carleton eds.,Continental Shelf Limits:The Scientific and Legal Interface,translated by LÜ Wenzheng et al.,Beijing:China Ocean Press,2012,p.23.(in Chinese)for the connection between the fixed points of the outer limits of the continental shelf.That is,the line should“not exceed 60 nautical miles in length”.Such a vague provision cannot solve the complex bridging problems encountered in practice,especially when the coastal State may deliberately misinterpret the clause and excessively claim the outer continental shelf rights.The Commission noted the issue of bridging lines and summarized some rules when considering specific submissions.

A.The Connecting Method of the Last Segment

The Commission summarized two methods for constructing the last segment.One is the intersection method,which means a formula line established in accordance with paragraphs 4 and 7 of Article 76 intersects the 200 M limit line.The other is the vertical method,which means the last segment shall be determined by the line of the shortest distance between the last fixed formula point and the 200 M limit line.The length of the last segment established by the above methods shall not exceed 60 M.27CLCS,Recommendations of the Commission on the Limits of the Continental Shelf (CLCS)in Regard to the Submission Made by Australia on 15 November 2004,adopted by the Commission on 9 April 2008,para.8.Also see CLCS,Recommendation of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by the Philippines in Respect of the Benham Rise Region on 8 April 2009,adopted by the Commission on 12 April 2012,para.53.The Commission suggested that Australia’s“respective connecting line be replaced by a point and a line that conform to the outer edge of the continental margin”,28CLCS,Recommendations of the Commission on the Limits of the Continental Shelf (CLCS)in Regard to the Submission Made by Australia on 15 November 2004,adopted by the Commission on 9 April 2008,paras.42,60,89,111,126,150,175 and 226.that is,to construct the last segment by the intersection method (see Fig.1B).

A typical case in which the Commission applies the vertical method is the joint submission.The joint submission needs to handle the following questions when constructing the last segment:(1) Does Spain have the right to claim a continental shelf beyond 200 M in this area? (2) How to choose the fixed point applicable to the rules of bridging lines? (3) Is the vertical line method suitable?

With regard to the first question,the eight continental slopes originally submitted by the four coastal States are located on the outer edge of the mainland of Ireland,the United Kingdom and France,so it is impossible to prove whether Spain satisfies the appurtenance test.During the examination,the four coastal States provided new sedimentary thickness formula points outside the 200 M limit line of Spain29CLCS,Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Joint Submission made by France,Ireland,Spain and the United Kingdom of Great Britain and Northern Ireland in Respect of the Area of the Celtic Sea and the Bay of Biscay on 19 May 2006,adopted by the Commission on 24 March 2009,Fig.4.,thus indicating that Spain also has an outer continental shelf right in this area and can participate in joint demarcation.Regarding question two,the choice of fixed point must conform to the principle of bridging the fixed point in the joint demarcation.30At its 20th session,the Commission reached a consensus on the principle of joint demarcation,namely that the total area of the continental shelf caused by the outer limits of the continental shelf proposed in the joint demarcation case cannot be greater than sum of the individual areas of the continental shelf proposed by States when they filed separate submissions.In other words,in any joint submission,each coastal State must determine its own set of criteria for the foot of the slope,the formulas used,the constraints and their respective external boundaries.In this case,the fixed point originally selected by the four coastal States (based on the formula point generated by the foot of the slope of Ireland) is located within the 350 M limit line of Spain,but has exceeded the 2500 m+100 M depth limit line and the 350 M distance limit line of Ireland.Therefore,it was rejected by the Commission.The revised fixed point is the intersection point of the sediment thickness line and the 350 M line of Ireland.The final point approved by the Commission is the point under the sediment thickness formula that does not exceed the 200 M limit line of Ireland,which I will not elaborate in detail.As for the last question,judging from the final recommendations,the method approved by the Commission is the vertical method.

In fact,there is another method of connection,namely,connecting the sediment thickness point of Spain with the distance line,and then applying the vertical method to bridge to the 200 M line of Spain.This method in which the formula points are connected to the 200 M limit line of the same coastal State seems to be more pursuant to the principle of joint demarcation (Fig.2B).However,the speciality of the joint delimitation is that the four coastal States have failed to provide more information about the foot of slope points and formula points of Spain in these waters.In the case of insufficient evidence,the application of the vertical method can provide a reasonable outer continental shelf area for coastal States.

So,does this mean that the above two methods have their own application of priority in practice? In this regard,the submission made by Barbados gives a positive answer.Barbados first connected the 200 M limit line with two opposite radiuses,and the intersection point is beyond the 200 M limit line (Fig.5A).31Barbados Continental Shelf Submission — Executive Summary,2008,Table 1 and Fig.1.

As far as I can see,one of the reasons why Barbados did not use the vertical method is that,while the information of the formula point is sufficient,the use of the vertical method may result in obvious unreasonably shaded areas.Moreover,if Barbados chose the vertical method,it could only obtain a smaller outer continental shelf.

Fig.5A.The outer limits of the continental shelf claimed by Barbados (FP6 and FP7 involve bridging problems)

Fig.5B.The outer limits of the continental shelf recommended by the Commission in Barbados

However,in this region,Barbados’ formula point does not exceed 200 M,which means that the area does not meet the criteria of the appurtenance test,32In the joint submission,the eight foot of slope points submitted by the four coastal States are located outside the 200 M limit line of Ireland,the United Kingdom and France.Therefore,the formula point extended from it must exceed 200 M.Ireland,the United Kingdom and France meet the appurtenance test.See 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 Area of the Celtic Sea and the Bay of Biscay,Executive Summary,English Version,Fig.2.and cannot claim rights of the continental shelf beyond the 200 M limit line.There is also a“shaded area”between the outer limits delineated by Barbados and the actual formula line.Barbados then used the intersection method,connecting the last fixed point on the outer edge of the continental margin to the formula point in the 200 M limit line.The point obtained through the intersection with the 200 M limit line is the fixed point of the outer edge (Fig.5B).

B.Other Connecting Methods

Paragraph 7 of Article 76 does not specify whether there is a need to connect fixed points in a certain order.In the submission made by New Zealand,the Commission emphasized that“in all cases,the length of the straight lines constructed following paragraph 7 of Article 76 shall not exceed 60 M”.33CLCS,Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Japan on 12 November 2008,adopted by the Commission,with amendments,on 19 April 2012,para.214.A typical counterexample is the range of outer continental shelves that New Zealand intends to construct in the South Fiji Basin.Most of the“shaded areas”have a width of more than 60 nautical miles and should thus be the Area (Fig.3B).Regrettably,it is not possible to find out the method suggested by the Commission.Yet in a similar submission made by Japan,the Commission gave clearer recommendations.

In its submission,the Japanese Committee pointed out that the line of the outer edge should be connected to the fixed point on the same formula line.In other words,the line cannot connect the fixed point on the east formula line to the fixed point on the west formula line,and vice versa.In addition,the length of these straight lines should not exceed 60 nautical miles under any circumstances.34CLCS,Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Japan on 12 November 2008,adopted by the Commission,with amendments,on 19 April 2012,para.214.In this case,although the two fixed points submitted by Japan are at the intersection of the formula line and the 200 M limit line,the length of the 200 M limit line between the two intersection points exceeds the maximum length stipulated in Article 76,paragraph 7.The“shaded area”constructed is thus invalid.In the end,the Commission ruled that the area of the Shikoku Basin Region,with an area of approximately 18,000 square kilometres,is not part of Japan’s outer continental shelf (Fig.4B).Some scholars describe it as a skylight.35FANG Yinxia,TANG Yong and FU Jie, Summary of Recommendations by the Commission on the Limits of the Continental Shelf with Regard to Japan’s Submission:A Commentary,China Oceans Law Review,2013,No.2,p.107.It is clear that the Commission needs to evaluate the“shaded area”constructed by the bridging lines.

III.The Legal Doctrine of the Commission’s Recommendations

Treaty interpretation is important in international law.It can not only clarify the meaning of the treaty itself,but help to resolve conflicts between treaties.36LIAO Shiping,The Application of Treaty Interpretation in Resolving Treaty Conflict,Foreign Affairs Review,2008,No.5,p.103.(in Chinese)In accordance with its functions under the Convention,37Art.3 (1) of Annex II to the Convention provides“[t]he functions of the Commission shall be:(a) to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles,and to make recommendations in accordance with article 76 and the Statement of Understanding adopted on 29 August 1980 by the Third United Nations Conference on the Law of the Sea;(b) to provide scientific and technical advice,if requested by the coastal State concerned during the preparation of the data referred to in subpara.(a)”.the Commission shall make recommendations to coastal States on the basis of38OU Shuiquan,The Establishment of the Outer Limits of the Continental Shelf:Connections and Contradictions Between the National Procedures and the Recommendations of the CLCS,Chinese Review of International Law,2017,Vol.3,p.51.(in Chinese)Article 76 and the Statement of Understanding adopted on 29 August 198039The Final Act of the Third United Nations Conference on the Law of the Sea,Statement of Understanding Concerning a Specific Method to be Used in Establishing the Outer Edge of the Continental Margin,at https://www.un.org/Depts/los/clcs_new/documents/final_act_annex_two.htm,17 October 2017..In performing its functions,the Commission inevitably has to interpret the substance of Article 76.40Suzette V.Suarez,The Outer Limits of the Continental Shelf:Legal Aspects of Their Establishment,Berlin:Springer,2008,p.122.The scope of the Commission’s interpretation includes scientific,technical and legal terms,together with the Guidelines as a clarification of its interpretation.41Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf,adopted by the Commission on 13 May 1999 at its fifth session,CLCS/11,para.1.3.In addition to the Guidelines,the recommendations made for each of the submissions by the Commission are another major manifestation of its interpretation of Article 76.42Suzette V.Suarez,The Outer Limits of the Continental Shelf:Legal Aspects of Their Establishment,Berlin:Springer,2008,pp.122～123.

A.The Nature and the Role of the Commission

Concerning the nature of the Commission,a more unified view is that it is an implementing body of the Convention,namely,a treaty body.43Bjørn Kunoy,Establishment of the Outer Limits of the Continental Shelf:Is Crossing Boundaries Trespassing?,The International Journal of Marine and Coastal Law,Vol.26,2011,p.325.However,there is controversy as to whether it satisfies the qualifications as a subject of international law,that is,whether it constitutes an international organization.International organizations generally have the following characteristics:(a) there is a formal agreement between States as the legal basis for their existence;(b) its primary participants are States;and (c) it is an inter-state institution independent of member States;(d) it possesses a function of a high-level international cooperation.44LIANG Xi,The Law of International Organizations,Wuhan:Wuhan University Press,1998,p.7.(in Chinese)According to the current practice of the Commission,it is still unable to meet the standards that constitute an international organization,but some scholars refer to it as“intergovernmental body”.45Surya P.Subedi,Problems and Prospects for the Commission on the Limits of the Continental Shelf in Dealing with Submissions by Coastal States in Relation to the Ocean Territory Beyond 200 Nautical Miles,The International Journal of Marine and Coastal Law,Vol.26,2011,p.430.The clearest reason is that the Commission does not have its charter that stipulates its principle of purpose,organizational structure,terms of reference,procedures of activities,and the rights and obligations of member States.Serdy believes that the Commission has neither an international legal personality nor budget,46Andrew Serdy,The Commission on the Limits of the Continental Shelf and its Disturbing Propensity to Legislate,The International Journal of Marine and Coastal Law,Vol.26,2011,p.355.while an international legal personality of independence is essential for an international organization,since it stipulates rights and obligations according to the law (capacity for rights) as well as the capability to exercise rights and perform obligations (capacity for action).47LIANG Xi,The Law of International Organizations,Wuhan:Wuhan University Press,1998,p.9.(in Chinese)It is generally believed that these capacities indicate they are eligible,in member States,to enter into contracts,purchase property,and conduct litigation;its clubs,member States,and their officials have privileges and immunities;in the international community,what is more,it is qualified to send and accept envoys,conclude international treaties,mediate international disputes,convene and preside over international conferences,demand international compensation,implement functional jurisdiction,and assume international responsibilities.48LIANG Xi,The Law of International Organizations,Wuhan:Wuhan University Press,1998,p.10.(in Chinese)

Those who are more inclined to take the Commission as an international organization,such as Professor Alvarez,believe that it is risky to make (arbitrarily)precise definitions of international organizations,because the reasons for some criteria are not clear.49José E.Alvarez,International Organizations as Law-makers,translated by CAI Congyan et al.,Beijing:Law Press,2011,p.7.(in Chinese)Professor Alvarez further elaborates that international organizations can create other international organizations,such as affiliates,expert groups,or organizations with a higher degree of autonomy.50José E.Alvarez,International Organizations as Law-makers,translated by CAI Congyan et al.,Beijing:Law Press,2011,p.13.(in Chinese)Although the status of the Commission as an international organization has not reached a consensus,it is undeniable that it already possesses many characteristics of international organizations,just as some international institutions in the fields of the environment and human rights.51Geir Ulfstein,Treaty Bodies and Regimes,The Oxford Guide to Treaties,Duncan B.Hollis ed.,Oxford:Oxford University Press,2012,p.428.

The role of the Commission is as ambiguous as its nature.Scholars are more likely to discuss this issue from three aspects,namely,the domestic law of legislation,administration or justice.The consistent understanding is to exclude the judicial status of the Commission,because its 21 members only have a scientific background.52Art.2 of Annex II to the Convention states that the 21 members of the Commission shall be experts in geology,geophysics or hydrology.See Bjørn Kunoy,Establishment of the Outer Limits of the Continental Shelf:Is Crossing Boundaries Trespassing?,The International Journal of Marine and Coastal Law,Vol.26,2011,p.325. Also see Surya P.Subedi,Problems and Prospects for the Commission on the Limits of the Continental Shelf in Dealing with Submissions by Coastal States in Relation to the Ocean Territory Beyond 200 Nautical Miles,The International Journal of Marine and Coastal Law,Vol.26,2011,p.430.However,some scholars believe that paragraph 8 of Article 76 creates a“quasi-judicial process”.53Donald R.Rothwell,Issues and Strategies for Outer Continental Shelf Claims,The International Journal of Marine and Coastal Law,Vol.23,2008,p.188.Professor Subedi believes that,although the Commission is not a judicial body,its status should be between the quasi-judicial and administrative organization.54Surya P.Subedi,Problems and Prospects for the Commission on the Limits of the Continental Shelf in Dealing with Submissions by Coastal States in Relation to the Ocean Territory Beyond 200 Nautical Miles,The International Journal of Marine and Coastal Law,Vol.26,2011,p.430.Professor McDorman believes that one of the Commission’s roles is“legislator”.Legislation is different from legal or political approval.It is neither black or white (legal or illegal);instead,it has a spectrum of greater or less rationality.The demarcation between coastal States falls into the category of legality.55Ted L.McDorman,The Role of the Commission on the Limits of the Continental Shelf:A Technical Body in a Political World,The International Journal of Marine and Coastal Law,Vol.17,No.3,2002,p.319.McDowell pointed out that another role of the Commission is a neutral“supervisor”.The supervisor can monitor whether a coastal State has an unreasonable claim of the outer continental shelf,but cannot interfere with the autonomy of the coastal State to establish the outer limits of its continental shelf.56Ted L.McDorman,The Role of the Commission on the Limits of the Continental Shelf:A Technical Body in a Political World,The International Journal of Marine and Coastal Law,Vol.17,No.3,2002,p.321.Some scholars describe it as a“watchdog”,see Piers Gardiner,Reasons and Methods for Fixing the Outer Limit of the Continental Shelf Beyond 200 Nautical Miles,Revue Iranienne des Relations Internationales,p.161,quoted from Erik Franckx,The International Seabed Authority and the Common Heritage of Mankind:The Need for States to Establish the Outer Limits of Their Continental Shelf,The International Journal of Marine and Coastal Law,Vol.25,2010,p.558;or Judge Dolliver Nelson,Symposium on Outer Continental Shelf September 2005 Opening Remarks,The International Journal of Marine and Coastal Law,Vol.21,No.3,2006,p.267.

Apart from the debate on the nature and role of the Commission,another way to find the legal basis for the Commission to establish the rules of the bridging lines is to analyse the role of the Commission as the subject of legal interpretation in the performance of its duties.

B.The Functions of the Commission and the Right to Interpret the Treaty

Treaty interpretation means that the subject of treaty interpretation (including States or institutions) clarifies the meanings of the provisions of the treaty,the relationship between the articles,and other documents that constitute the treaty as a whole under certain rules and methods.57WAN Exiang et al., Law of International Treaties,Wuhan:Wuhan University Press,1998,p.204.(in Chinese)Treaty interpretation is a necessity for the good faith of fulfilling the treaty.58LI Haopei,Introduction to the Law of Treaties,Beijing:Law Press · China,2003,p.334.(in Chinese)Professor WAN Exiang divides treaty interpretation into academic explanation and legal interpretation.59WAN Exiang et al., Law of International Treaties,Wuhan:Wuhan University Press,1998,p.206.(in Chinese)The academic explanation is the interpretation of theory and principle of treaties discussed by international law scholars;it belongs to non-rightful interpretation and has no legal effect.60LI Haopei,Introduction to the Law of Treaties,Beijing:Law Press · China,2003,p.334.(in Chinese)The legal interpretation is the rightful interpretation reached by all the parties in consultation and possesses legal effect.61WAN Exiang et al., Law of International Treaties,Wuhan:Wuhan University Press,1998,p.206.(in Chinese)The rightful interpretation in the sense of international law includes the interpretation of the State party,the interpretation of the international judicial body and the interpretation of international organizations.Among them,the right of interpretation of international organizations comes from the authorization of the organization charter on which they are founded and acted,and aims to implement the powers stipulated in the charter.62WAN Exiang et al.,Law of International Treaties,Wuhan:Wuhan University Press,1998,p.245.(in Chinese)The Convention specifies that the Commission makes recommendations to coastal States in accordance with Article 76 and the 1980 Statement of Understanding.Professor Elferink believes that this function includes consideration of whether information submitted to the Commission in accordance with Article 76 is,in fact,consistent with the specific outer limits claimed by the coastal State and,for this purpose,may need specific interpretation of Article 76.63Alex Elferink,The Continental Shelf Beyond 200 Nautical Miles:The Relationship Between the CLCS and Third Party Dispute Settlement,Oceans Management in the 21st Century:Institutional Frameworks and Instruments,Alex Elferink and Donald Rothwell eds.,Leiden:Martinus Nijhoff Publishers,2004,p.112.Quoted from Bjørn Kunoy,Establishment of the Outer Limits of the Continental Shelf:Is Crossing Boundaries Trespassing?,The International Journal of Marine and Coastal Law,Vol.26,2011,p.326.Scholar Kunoy interprets this as the Commission should make recommendations by the legal premises of Article 76.64Bjørn Kunoy,Establishment of the Outer Limits of the Continental Shelf:Is Crossing Boundaries Trespassing?,The International Journal of Marine and Coastal Law,Vol.26,2011,p.326.Suarez also believes that the Commission will inevitably explain the substantive provisions of Article 76 when performing its functions.65Suzette V.Suarez,The Outer Limits of the Continental Shelf:Legal Aspects of Their Establishment,Berlin:Springer,2008,p.122.To fulfil its obligations under the Convention,the Commission must interpret the vague words in the provisions of Article 76 in the process of recommendations,although the rationality of its rightful interpretation cannot circumvent the question of whether or not the Commission is an international organization.

In theory,it is necessary to interpret Article 76 for the following three situations.First,the provisions are clear in general,but the Commission needs to interpret terms of science and technology.Second,the provisions are clear in general,but the Commission needs to interpret legal terms.Third,the provisions are not clear in general,and the Commission needs to interpret in terms of science,technology and law.The last segment problem in this paper belongs to the third situation,as the article does not stipulate how the outer limits of the continental shelf are connected to the 200 nautical miles.Other bridging problems belong to the first,that is,how to choose a fixed point,or whether the fixed points should be bridged in a certain order.In fact,the scientific,technical factors and legal factors involved in Article 76 are mutually influential -the scientific and technical explanations,such as the choice of fixed points,will affect the scope of the outer limits of the continental shelf of the coastal State,thus affecting the legal rights actually enjoyed by the coastal State.At the same time,it should be pointed out that,in the third situation,the interpretation of the Commission constitutes a“quasi-legislative”act.

The reason for the above subdivision of the interpretation of Article 76 is that there is another international dispute on whether the Commission has the role to interpret the scientific and technical issues,together with legal issues,involved in Article 76.This paper argues that the Commission deserves the role to interpret the scientific and technical aspects of Article 76,although its legal interpretation rights are subject to controversy.66The view was reiterated that the mandate of the Commission was limited to scientific and technical issues and,thus,it had no role in interpreting any article of the Convention.See the Report of the Nineteenth Meeting of States Parties,SPLOS/203,para.107.Ted L.McDorman,The Entry into Force of the 1982 LOS Convention and the Article 76 Outer Continental Shelf Regime,The International Journal of Marine and Coastal Law,Vol.10,No.2,1995,p.177.The Convention stipulates that the Commission provides scientific and technical advice.67Art.3,para 1 (b) of Annex II to the Convention.For information on how the Commission can advise coastal States,see Edwin Egede,Submission of Brazil and Article 76 of the Law of the Sea Convention (LOSC) 1982,The International Journal of Marine and Coastal Law,Vol.21,No.1,p.47.At the same time,the information obtained by the Commission through international cooperation is only scientific and technical information.68Art.3,para.2 of Annex II to the Convention.In light of the rules of contextual interpretation established by the Vienna Convention on the Law of Treaties,69Art.31 of Vienna Convention on the Law of Treaties.combined with the fact that members of the Commission come from a scientific background rather than a legal background,70In order to effectively perform its function,the Commission established a scientific and technical committee,its subsidiary body,at the first session of the Commission,as indicated in the Statement by the Chairman,CLCS/1,para.14.it is reasonable to conclude that the advice made by the Commission referred by Article 3,paragraph 1 (a) of Annex II is also limited to the scientific and technical aspects consistent to Article 76 and the 1980 Statement of Understanding.

However,some scholars oppose the practice of completely separating scientific and technical issues from legal issues.For example,LIU Liang believes that although many of the terms used in the treaty derive from science,once they become part of the treaty,their application and interpretation should follow the rules of the international law of treaties.71LIU Liang,The Nature and Legally Binding about the Recommendations of CLCS -And Case Analysis of Partial Submission in Respect of the East China Sea,Pacific Journal,2014,No.5,p.24.(in Chinese)Jensen believes that the expression“in accordance with Article 76”states that the Commission has the role to make legal interpretations to distinguish itself from treaty bodies with either political or scientific mandates.72Øystein Jensen,The Commission on the Limits of the Continental Shelf:Law and Legitimacy,Leiden:Brill Nijhoff,2014,pp.159～160.By making recommendations to coastal States,the Commission is actually exercising a“judicial”function.73Øystein Jensen,The Commission on the Limits of the Continental Shelf:Law and Legitimacy,Leiden:Brill Nijhoff,2014,p.160.Nelson also asserts that interpreting and applying the relevant provisions of the Convention itself is a legal issue.74L.D.M.Nelson,The Continental Shelf:Interplay of Law and Science,Liber Amicorum Judge Shigeru Odain,Nisuke Ando,Edward McWhinney and Rüdiger Wolfrum eds.,Berlin:Springer,2002,pp.1235～1253,quoted from Bjørn Kunoy,Establishment of the Outer Limits of the Continental Shelf:Is Crossing Boundaries Trespassing?,The International Journal of Marine and Coastal Law,Vol.26,2011,p.326.

It is not disputed that the Commission does not have the role of interpretation other than Article 76.In practice,however,the interpretation of Article 76 is often related to other articles of the Convention,such as Article 121 about islands and reefs.The Commission has sought legal advice from the UN Secretary-General’s Legal Counsel (hereinafter“legal counsel”) and even at the Meeting of States Parties.75As of now,the Legal Counsel has provided legal advice on the following issues:Legal Opinion on the Applicability of the Convention on the Privileges and Immunities of the United Nations to the members of the Commission (CLCS/5),Legal Opinion as to the Most Appropriate Procedure in Cases where It Might Be Necessary to Institute Proceedings Following an Alleged Breach of Confidentiality (CLCS/14),Legal Opinion on Whether It Is Permissible,under the United Nations Convention on the Law of the Sea and the Rules of Procedure of the Commission,for a Coastal State,which Has Made a Submission to the Commission in Accordance with Article 76 of the Convention,to Provide to the Commission in the Course of the Examination by It of the Submission,Additional Material and Information Relating to the Limits of Its Continental Shelf or Substantial Part Thereof,which Constitute a Significant Departure from the Original Limits and Formulae Lines that Were Given Due Publicity by the Secretary-General of the United Nations in Accordance with Rule 50 of the Rules of Procedure of the Commission (CLCS/46).At http://www.un.org/Depts/los/clcs_new/commission_documents.htm#Statements by the Chairman of the Commission,26 October 2017.Rule 57(1) of the Rules of Procedure and Article 10(2) of Annex III provide the legal basis for the Commission and the subcommission to seek external legal advice.76Rule 57(1) of the Rules of Procedure provides“the Commission may,to the extent considered necessary and useful,consult specialists in any field relevant to the work of the Commission.”Art.10(2) of Annex III to the Rules of Procedure stipulates“If necessary,the subcommission may request the advice of other members of the Commission and/or,on behalf of the Commission,request the advice of a specialist in accordance with rule 57,and/or the cooperation of relevant international organizations,in accordance with rule 56.”It can be reasonably inferred that the phrase“specialists in any field relevant”does not exclude legal field.See Anna Cavnar,Accountability and the Commission on the Limits of the Continental Shelf:Deciding Who Owns the Ocean Floor,Cornell International Law Journal,Vol.42,Issue 3,2009,Note 298.However,at the Nineteenth Meeting of States Parties,it was stated that the Commission could not seek legal advice from the Secretariat without the approval of the Meeting of States Parties,as the Secretariat did not have the mandate to give such advice to the Convention.See the Report of the Nineteenth Meeting of States Parties,SPLOS/203,para.107.However,the legal counsel and the Meeting of the States Parties77In considering the issue of the Okinawa Reef involved in the delimitation of the outer limits of the continental shelf of Japan,the Nineteenth Meeting of States Parties discussed the interpretation of Article 121 and related issues.The discussion was divided into two groups.One believes that interpreting the Convention was one of the prerogatives of the Meeting of States Parties.It was also recalled that the Meeting had already adopted decisions that amounted to an interpretation of the Convention.(para.11) It is noted that the work of the Commission was an important step in the establishment of the boundaries between the Area,as the common heritage of mankind,and areas under coastal States’ jurisdiction.In this regard,several delegations noted a relationship between articles 76 and 121 of the Convention and cautioned against any encroachment upon the Area as the common heritage of mankind.(para.106) Other delegations opposed the inclusion of the additional item.They were of the view that the mandate of the Meeting of States Parties was to deal with administrative and budgetary issues.(para.13) Some delegations cautioned against a substantive discussion on article 121,which might lead to reopening discussions on other articles of the Convention and altering its delicate balance.(para.108) The Meeting of States Parties did not finalize the issue.See the Report of the Nineteenth Meeting of States Parties,SPLOS/203.have not been able to explain the legal aspects of the provisions of the Convention.In the absence of a legal interpretation,the Commission may be able apply other remedies,such as seeking advice from an international judiciary.78The provisions about the advisory opinion concerning the International Court of Justice include Art.96 of the Charter of the United Nations and Art.65,para.1,of the Statute of the International Court of Justice.Art.96 of the Charter of the United Nations states:1.The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.2.Other organs of the United Nations and specialized agencies,which may at any time be so authorized by the General Assembly,may also request advisory opinions of the Court on legal questions arising within the scope of their activities.Article 65,para.1,of the Statute of the International Court of Justice stipulates the Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.For a detailed discussion of the jurisdiction of the International Court of Justice,see LIU Fangxiong,Research on the Advisory Jurisdiction of the International Court of Justice,Zhejiang:Zhejiang University Press,2008.Of course,it is still necessary to consider whether the Commission is an international organization with consultation qualifications (refer to the above-mentioned discussion on the nature of the Commission),or,can the Commission submit a consultation application through the relevant international organization? Since the focus of this paper is not on whether and how the committee can seek advice,I will not elaborate this further.

C.Effectiveness and Priority of Interpretation

According to the criteria for the validity of interpretation,the interpretation of the treaty can be divided into a rightful interpretation (with legal effect) and a nonrightful interpretation (without legal effect).This standard is not strictly compatible with the subject of interpretation.LI Haopei,a prestigious international law scholar,believes that according to the subject of interpretation,the interpretation of the treaty is divided into the academic interpretation and the official interpretation.The official interpretation is the interpretation of the treaty by the parties to the treaty or their authorized international agencies.The official interpretation does not necessarily equate to the rightful interpretation.The rightful interpretation must be the official interpretation of the agreement of the parties to the treaty;that the official interpretation of one party to the treaty is not the rightful interpretation,79LI Haopei,Introduction to the Law of Treaties,Beijing:Law Press · China,2003,p.334.(in Chinese)which can only produce effects that constrain itself.Both the Commission and the coastal State can interpret Article 76 and the right to interpret is equal.The Commission’s obligations under Article 76 do not diminish the right of Member States’ right to interpret the Convention.80Members of the Committee,Committee on Legal Issues of the Outer Continental Shelf,International Law Association Reports,Vol.72,2006,p.228.

In most cases,however,the relevant interpretations of Article 76 by the Commission and the coastal State often arise from conflicts due to national interests.For example,after the Commission made a recommendation on the submission made by the United Kingdom on Ascension Island,the British government wrote to the UN Secretary-General the following year,expressing their disappointment with the recommendation made by the Commission and requested to publish the“Paper Summarising the Presentation by the United Kingdom of Great Britain and Northern Ireland to the Commission on the Limits of the Continental Shelf on Points of Legal Interpretation made on 12 April 2010”.81Statement by the Chairperson of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission,CLCS/70,para.66.In this summary,the UK presented its own interpretation of the meaning of the deep ocean floor,the meaning of natural extension,and the use of topographic factors in preference to the use of geological factors.82Paper Summarising the Presentation by the United Kingdom of Great Britain and Northern Ireland to the Commission on the Limits of the Continental Shelf on Points of Legal Interpretation made on 12 April 2010,para.6.As mentioned above,although the Commission may interpret Article 76 to perform its functions,it is still controversial whether the interpretation has a legal effect because of the nature of the subject,while the unilateral interpretation of the provisions of Article 76 by the coastal State does not constitute a completely rightful interpretation.Therefore,the comparison of the rightful interpretation of this paper between the two is not solely based on whether it has a legal effect.

The subject of this section,“priority”,means that,when there are inconsistencies or even conflicts between the interpretation of the coastal State and that of the Commission,which is the rightful one? According to the Convention,the recommendations of the Commission constitute a precondition for the decision of the coastal State,since the“final and binding”limits of the continental shelf made by the coastal State must be“on the basis of these recommendations”.83Para.8,Art.76 of the Convention.But how to interpret“on the basis of”? In other words,are the“limits”binding when they are not based on the recommendations of the Commission? This issue has always been the focus of the academic community but has lacked conclusiveness.

What is certain is that the path of the Convention’s power to distribute does not force member States to deal directly with each other as required,but rather through an intermediary mechanism,such as the Commission.This ensures neutrality is maintained.84Suzette V.Suarez,The Outer Limits of the Continental Shelf:Legal Aspects of Their Establishment,Berlin:Springer,2008,p.124.Therefore,the right to interpret Article 76 is not exclusive to the coastal State but shared by both the coastal State and the Commission.85Suzette V.Suarez,The Outer Limits of the Continental Shelf:Legal Aspects of Their Establishment,Berlin:Springer,2008,p.124.Even when a conflict exists between the two,the Commission’s interpretation isde factobinding,since article 8 of Annex II to the Convention provides that,in the case of a coastal State’s disagreement with the recommendation of the Commission,the coastal State shall propose a revised or new submission.In other words,the coastal State may choose to indefinitely postpone the publication of the nautical chart and related information permanently describing the outer limits of its continental shelf.86Para.9,Art.76 of the Convention.It may also propose a revised or new submission within a reasonable period,waiting for the Commission to make a new recommendation.

IV.Conclusions

The study of the rules of bridging lines has theoretical and practical significance.The significance of the theory includes three aspects:(a) forming a correct understanding of the procedures for determining the outer limits of the continental shelf;(b) forming a correct understanding of the Commission and its recommendations;(c) forming a correct understanding of the rules of the bridging lines.The practical significance lies in guiding China’s use of bridging lines in the East China Sea and for the future delimitation of the outer continental shelf in other sea areas such as the South China Sea.

A.Forming a Correct Understanding of the Procedure of Determining the Outer Limits of the Continental Shelf

One of the greatest contributions of the Convention is the establishment of a comprehensive system for the peaceful settlement of disputes,namely,the enforcement of dispute settlement procedures,including mediation,arbitration or the International Tribunal for the Law of the Sea.87Peter J.Cook and Chris M.Carleton eds.,Continental Shelf Limits:The Scientific and Legal Interface,translated by LÜ Wenzheng et al.,Beijing:China Ocean Press,2012,p.15.(in Chinese)However,one of the reasons for the establishment of the Commission is to avoid the establishment of the outer limits of the continental shelf being constrained by a third-party dispute resolution procedure.88Peter J.Cook and Chris M.Carleton eds.,Continental Shelf Limits:The Scientific and Legal Interface,translated by LÜ Wenzheng et al.,Beijing:China Ocean Press,2012,p.23.(in Chinese)This is because the delimitation of the outer limits of the continental shelf and the demarcation between States are parallel and independent.The former,moreover,involves the Area of“the common heritage of mankind”and thus has an impact on the peaceful global ocean law order.Therefore,even if the two States are conducting maritime delimitation through international judicial proceedings,or relevant judicial decisions already exist,their procedures and judgments will not affect the Commission’s examination of the outer limits of the two States.This position has been agreed upon by many States.For example,during the Commission’s examination of the submission,Côte d’Ivoire and Ghana were in the process of resolving the maritime dispute through the International Tribunal for the Law of the Sea.And Ghana stated that it did not object to the Commission’s examination of its submission.89Statement by the Chair -Forty-first Session (CLCS/95),para.71.Côte d’Ivoire also did not object to this.Another example is the Maritime Delimitation in the Indian Ocean (Somalia v.Kenya).When the case is still pending before the International Court of Justice,the Commission can successfully examine the submissions made by two States after they signed a temporary arrangement.90Statement by the Chair -Forty-first Session (CLCS/95),para.86.

B.Forming a Correct Understanding of the Commission and its Recommendations

The final outer limits of the continental shelf of the coastal State are the dividing line between the outer continental shelf within the jurisdiction of the coastal State and the Area that is the“common heritage of mankind”.Given the importance of regional resources,the sensitivity of coastal States to their sovereignty,the complexity of Article 76 and the coherence of the application of the provisions,the consultation members participating in the conference on Law of the Sea create an ingenious balance in Article 76.Paragraph 8 provides that the right to establish the final outer limits of the continental shelf lies with the coastal State,because it involves the sovereign rights of the State.The Commission with advisory capacity is established to scrutinize whether the outer limits of the continental shelf proposed by the coastal State are acceptable or have been accepted within the scientific purview.Under this framework,the coastal State has the right to determine flexibly the outer limits of the final continental shelf within the scope of the Commission’s recommendations,as well as the obligation to submit information on the submissions in good faith.91Peter J.Cook and Chris M.Carleton eds.,Continental Shelf Limits:The Scientific and Legal Interface,translated by LÜ Wenzheng et al.,Beijing:China Ocean Press,2012,pp.23～24.(in Chinese)

When a coastal State made a submission and the Commission’s recommendations are acceptable to the State,then it can delineate the outer limits of its continental shelf;and this boundary is final and binding.If the Commission’s recommendations are unacceptable to the coastal State,then the State must resubmit a revised or new submission in accordance with Article 8 of Annex II.In theory,this procedure can go on indefinitely.Some scholars believe that the clause actually grants the coastal State a relief right,namely,for the recommendation that does not support its own claims,it has the right to submit amendments.However,before the Commission accepts its submission,the coastal State must acknowledge the legal effect of the recommendation and the legal consequences it brings.92LIU Liang,The Nature and Legally Binding about the Recommendations of CLCS -And Case Analysis of Partial Submission in Respect of the East China Sea,Pacific Journal,2014,No.5,p.26.(in Chinese)Although most scholars do not consider the recommendations of the Commission to be legally binding,it is clear from the above analysis that the Commission’s recommendations do havede factoguidance and binding on the coastal State.Although the coastal State enjoys the right to refute the recommendations,it must accept challenges from other States.

C.Forming a Correct Understanding of the Rules of Bridging Lines

The applicable rules of bridging lines not only simplify the outer edge of the continental shelf in the legal sense,but also maximize the area of the“shaded area”by calculating the optimal position of the last point of the bridging line.93Bill Hirst,Brian Murphy and Philip Collier,An Overview of Australian Maritime Zone Boundary Definition,at http://webmap.ga.gov.au/pdf/auslig/hirst-lawofthesea.pdf,19 April 2017.For example,during the delimitation in the Musklin Sea Platform,Mauritius and Seychelles made full use of bridging lines.94CLCS,Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Joint Submission made by Mauritius and Seychelles Concerning the Mascarene Plateau Region on 1 December 2008,adopted by the Commission on 30 March 2011,Fig.6.However,smoothening the outer edge of the continental margin also poses a risk that some of the areas belonging to the deep ocean floor may,in a legal sense,form the continental shelf of the coastal State.95Øystein Jensen,The Commission on the Limits of the Continental Shelf:Law and Legitimacy,Leiden:Brill Nijhoff,2014,p.73.There may even be a coastal State that deliberately misinterprets the rules of the bridging lines,so that a large area that originally belonged to the international seabed falls within the jurisdiction of the State.One of the key factors leading to this phenomenon is“unclear law”.Therefore,while applying the rules of bridging lines to maximize the outer limits of the continental shelf,the coastal State should reasonably evaluate the area of the“shaded area”formed,otherwise it will bear the risk of being rejected by the Commission.

D.Meeting China’s Actual Needs

Demarcating the outer limits of the continental shelf in accordance with Article 76,paragraph 8 and in accordance with appropriate national procedures is a treaty obligation to be fulfilled by States parties to the Convention.96Art.7 of Annex II to the Convention.In order to meet the deadline,97Art.4 of Annex II to the Convention provides that a coastal State shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State.Given the capacity of developing States,in May 2001,the Eleventh Meeting of States Parties decided“for a State for which the Convention entered into force before 13 May 1999,the date of commencement of the 10 years for making submissions to the Commission is 13 May 1999”.See Report of the Eleventh Meeting of States Parties,para.81.Art.45 of the Committee’s Rules of Procedure is amended accordingly.China submitted preliminary information on the outer limits of the continental shelf beyond 200 nautical miles in some parts of the East China Sea on May 11,2009,and submitted a complete external continental shelf covering part of the East China Sea on December 14,2012.However,China,South Korea and Japan have not yet completed the delimitation of the continental shelf in the sea areas involved in the submission and the demarcation of the sea area is not yet clear.From the executive summary of the submission,it can be seen that the northern and southern ends of the outer limits of the continental shelf claimed by China do not use bridging lines to envelope a completed outer continental shelf area with the 200 M limit line.98Submission by the People’s Republic of China Concerning the Outer Limits of the Continental Shelf Beyond 200 Nautical Miles in the East China Sea:Executive Summary,p.6.However,this does not exclude the possibility of China using bridge lines to build the final outer limits of the continental shelf in other sea areas such as the East China Sea or the South China Sea.Therefore,studying the rules of bridging lines has important practical significance for China.