The Outer Continental Shelf Claim by a Non-Party to the LOS Convention: Lawful or Unlawful?

Abstract The outer continental shelf (“OCS”) regime established by the 1982 UN Convention on the Law of the Sea (“LOS Convention”) is a package deal composed of the provisions of Articles 76 and 82, and a State party claiming the OCS right has to assume the corresponding obligations. Since the revenue sharing system stipulated in Article 82 is not part of customary law, the OCS claim by a non-party to the LOS Convention is tantamount to attempting to acquire the benefits of the LOS Convention but unwilling to assume the obligations therein. Allowing such claims is unfair to the States parties. More importantly, it is difficult for the non-parties to find a valid basis in international law for their OCS claims. The inherent right of a coastal State to the continental shelf is irrelevant to the OCS claim. The continental margin criterion in Article 76(1) did not codify or crystallize any existing or emergent rule of customary law, but was a product of the LOS Convention. And the criterion should not be considered to have obtained the customary law status since the adoption of the LOS Convention. Under customary law, coastal States that are not parties to the LOS Convention are entitled to a 200-nm continental shelf. However, due to the absence of a valid basis in international law, the OCS claim by a non-party should be considered unlawful.