Outer limits of the continental shelf beyond CLCS recommendations and Article 76(8) of UNCLOS: With reference to Japan’s Cabinet Order No. 302

• Published in: Leiden journal of international law 2022-03, Vol.35 (1), p.85-103
• Main Authors: Gau, Michael Sheng-ti, Zhao, Si-han
• Format: Article
• Language: English
• Subjects: Cabinet; Continental shelves; INTERNATIONAL LAW AND PRACTICE; Law of the Sea; Obligations; ORIGINAL ARTICLE
• ISSN: 0922-1565; 1478-9698
• DOI: 10.1017/S0922156521000546

In 2014 Japan’s Cabinet Order No. 302 declared the outer limits of its continental shelf beyond 200 nautical miles (OL) to the west and north of Oki-no-Tori Shima (Area 302). Oki-no-Tori Shima consists of two small, barren, and uninhabitable rocks in the West Pacific. The northern part of Area 302 is broader than what the 2012 recommendations of the Commission on the Limits of the Continental Shelf (CLCS) specify. A question arises whether Order No. 302 violates Article 76(8) of the United Nations Convention on the Law of the Sea (UNCLOS), which provides that the OL established by a coastal state ‘on the basis of’ the CLCS recommendations shall be final and binding. Another question is the role played by the CLCS in ‘assisting’ the coastal states to delimit their national jurisdiction so as to know where the Area (i.e., the Common Heritage of Mankind under UNCLOS Articles 1(1)(1) and 136) begins. The essential questions arising from Area 302 concern how well the UNCLOS mechanism can perform to safeguard the Common Heritage of Mankind through preventing encroachment thereupon by individual coastal states. This article looks at the context and explores the obligations implied by Article 76(8) for coastal states to ‘follow’ the recommendations in establishing the OL, with special reference to the northern part of Area 302. The article also examines legal consequences arising from a breach of these obligations.