Hiiraan Online

by Mohamed Isse Trunji
Friday, June 24, 2016

In the end of August 2014 Somalia instituted proceedings before the International Court of Justice (ICJ) against Kenya with regard to maritime boundary delimitation dispute in the Indian Ocean. The decision on the case is expected to take a considerable amount of time before it is delivered. The average length of a procedure before the Court, from the filing of the case to the reading of the Judgment on the merits, may go from 2½ years to nearly 4 years. Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned. Article 94 of the United Nations Charter lays down that "each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party". Somalia asked the Court to:

(a)  Determine, on the basis of international law the complete course of the single maritime boundary dividing all the maritime areas, i.e., territorial sea, exclusive economic zone and continental shelf within and beyond 200 nautical miles appertaining to Somalia and to Kenya in the Indian Ocean. Somalia further requests the Court 

(b)   To determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean.

The said agreement had received greater attention by the Somali public at large provoking stormy debate in the Parliament which resulted in the agreement with Kenya being eventually scraped. Indeed, the MoU divided the Somali public opinion into two broad categories: (a) Those with strong reservations as to the legitimacy of the Transitional Government to enter into international obligations on behalf of Somalia, a country without a central effective government, and (b) those holding the view that the government in Mogadiscio, by signing an agreement with Kenya, had allegedly acted against the interest of Somalia with the connivance of Kenya.  

The Somali Parliament, coming under pressure from a generally not sufficiently well informed public opinion took a hasty decision to disregard the MoU with Kenya. Indeed, if one takes a close scrutiny of the agreement even without through legalistic lenses finds that the document does not deal, at all, with delimitation of maritime dispute; it concerns only the submission of the outer limit of the Continental shelf to the relevant UN Commission as provided under article 76 of the Convention.  Of course, land and maritime disputes are present in many of the submissions before the Commission and this creates an obvious tension. It is a tension that was anticipated by the drafters of the Convention and which is addressed in the text of the Convention and in the Commission’s Rule of Procedure. In fact, Article 76 of the Convention is quite clear that “the provisions of [that] article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts. Annex II of the Convention further provides that “actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts. Annex I to the Rules of Procedure emphasize and expand the point:  “The submission made before the Commission and the recommendations approved by the Commission thereon shall not prejudice the position of States which are parts to a land or maritime dispute. It follows that the Memorandum of Understanding between Kenya and Somalia reflects two key clauses: Firstly, it recognizes the existence of “unresolved delimitation issue between the two States referred to as “maritime dispute”. Secondly, it spells out that it “shall not prejudice the positions of the two coastal States with respect to the maritime dispute between them and shall be without prejudice to the future delimitation of maritime boundaries in the area under dispute, including the delimitation of the continental shelf beyond 200 nautical miles.” Both Kenya and Somalia have now submitted preliminary information documents that will be followed by full submission to be made at later stage.

Part XV of the Convention lays down a comprehensive system for the settlement of disputes that might arise with respect to the interpretation and application of the Convention. It requires States Parties to settle their disputes concerning the interpretation or application of the Convention by peaceful means indicated in the Charter of the United Nations (Article 279). However, if parties to a dispute fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to limitations and exceptions contained in the Convention. The mechanism established by the Convention provides for four alternative means for the settlement of disputes: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention.

This paper does not purport to speculate or comment on what might or might not be the Court ruling on the case; it  is primarily designed to give the interested general public a basic knowledge of the evolution of the Third UN Conference on the Law of the Sea which produced the Convention known as UNCLOS III.

Historical Background

Prior to the 20th century, the oceans had been subject to the freedom of the seas doctrine. This principle, adopted in the 17th century, limited national rights and jurisdiction over a narrow band of water along a nation’s coast, the rest of the sea being free to all and belonging to none.

Nearly a century later, the "cannon-shot" rule became the basis for determining how much of the adjacent oceans were under the jurisdiction of a nation. The cannon-shot rule set forth that a nation controlled a territorial sea as far as a projectile could be fired from a cannon based on shore. In the 18th century this range was approximate three nautical miles. As time progressed, three miles became the widely accepted range for the territorial sea.

With the technological developments of the mid-19th and early-20th centuries, however, not only did ships become more powerful, but technology allowed humanity to exploit ocean resources that had never before been envisioned. Fishermen, once limited to areas near their own coasts, were now equipped with vessels that could allow them to stay at sea for months at a time and capture fish harvests that were far from their native waters. Virtually unrestrained, fleets from around the world traveled to areas rich in fish-stocks. The lack of restraint on the part of these fishermen resulted in fish stocks around the world being depleted without regard to the stability of their numbers. Evolving technology also allowed for the exploitation of previously inaccessible off-shore resources, most notably oil. In order to protect local resources, be they biological or mineral, nations began expanding their claims of sovereignty beyond the traditional 3 mile limit.

The first nation to challenge the long-standing freedom of the seas doctrine was the United States. On September 28, 1945, President Harry S. Truman signed what has become commonly known as the Truman Proclamation. The proclamation set a claim of sovereignty by the United States to the outer continental shelf (OCS) and the resources therein as well as establishing the right of the U.S. to establish conservations zones "in areas of the high seas contiguous to the coasts of the United States." While recognizing some limited sovereignty over an expanded region of the sea, the proclamation was careful to stipulate that the new US policy did not affect "the right [of] free and unimpeded navigation."

After the United States expanded its claim, it was not long before other nations followed suit. By 1950, Argentina was actively claiming their continental shelves as well as the water column above it. Ecuador, Chile, and Peru were asserting rights over a 200-mile zone in order to protect their biological resources from foreign fleets, and a spate of Arab and Eastern European nations were laying claim to a 12-mile territorial sea. There was a growing understanding, however, that such a fractured regime could not continue.

At this point, a brief history of the changes the Somali maritime law has gone through the years is in order. In 1959 the breath of the Territorial Sea was 6 nautical mile (law n.1 of 21 February 1959) before being extended, in 1966, to 12 miles. (Law n. 7 of 1 November 1966)  Further extension of the breath of Territorial Sea was made in 1972 bringing it to 200 nautical miles. (Law n. 37 on Territorial Sea and Ports of 10 September 1972)

The First United Nations Convention on the Law of the Sea (UNCLOS I)

Recognizing the conflicts that were resulting from the current regime, the General Assembly adopted resolution 1105 (XI) which called for the convening of the First United Nations Convention on the Law of the Sea in Geneva in 1958 (commonly referred to as (UNCLOS I). Eighty-six nations participated. The conference produced four separate conventions.

1.      the convention on the Territorial Sea and the Contiguous Zone, which came into force on 10 September 1966;

2.      the Convention on the High Seas, which came into force on 30 November 1962;

3.      the Convention on Fishing and Conservation of the Living Resources of the High Seas, which came into force on 20 March 1966; and

4.      the Convention on the Continental Shelf which came into force on 10 June 1964. The Convention also produced an Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes (provides for the compulsory jurisdiction of the International Court of Justice, or for submission of the dispute to arbitration or conciliation) However, while UNCLOS I saw a significant development in producing four conventions, it did not settle a maximum breadth for the territorial sea or the extent of coastal State fisheries jurisdiction.

The Second United Nations Convention on the Law of the Sea (UNCLOS II)

In an attempt to deal with the issues that remained unresolved after UNCLOS I, the General Assembly called for a second United Nations Convention on the Law of the Sea (commonly referred to as UNCLOS II). The parties met for just over a month in early 1960 with the objective of settling the question on the breadth of the territorial seas and fishery limits. UNCLOSE II failed by one vote to achieve the two-thirds majority required for the adoption of a joint Canadian-United States initiative for a maximum of territorial sea breadth of six miles with an adjacent six-mile fisheries zone. Consequently, no agreement emerged from UNCLOSE II.

The four conventions referred to above have secured an average of about 40 ratifications as compared with a total of 150 sovereign States in the world of 1972. It was a moot point, therefore, whether these conventions which passed into law with a few ratification could be regarded as representing the will or reflecting the interest of the great majority of the people of the world.

The Third United Nations Conventions on the Law of the Sea (UNCLOS III)

Frustrated by the continuing inconsistency in the ocean governance regime, Malta's ambassador to the United Nations, Arvid Pardo, called upon the General Assembly to take action and called for "an effective international regime over the seabed and the ocean floor," that clearly defined national jurisdiction. One month later, the General Assembly adopted resolution 2467 A (XXIII) and resolution 2750 C (XXV), which created the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction. By the same resolution, the General Assembly also decided to convene the first session of the Third United Nations Conference on the Law of the Sea in New York from 3 to 14 December 1973 for the purpose of dealing with organizational matters, including the election of officers, the adoption of the agenda and rules of procedure of the Conference and any other purpose within its mandate. The second session was held in Caracas, at the invitation of the government of Venezuela, from 29 June to 29 August 1974 to deal with the substantive work of the Conference. There were in all eleven sessions, held between the United Nations Headquarters in New York and the Office of the United Nations in Geneva. The final part of the eleventh session was held at Montego Bay, Jamaica, from 6 to10 December 1982.

On 10 December 1982 the United Nations Convention on the Law of the Sea was opened for signature in Montego Bay, Jamaica. This marked the culmination of 14 years of work involving participation by more than 150 nations representing all regions of the world. The scope and length of negotiations meant that much of the work had to proceed in committees. Many of the negotiations were advanced by groups representing particular interests or alliance; alliances based on common interests, economic, philosophic, or political, were the most effective alliances at the Conference. Such alliances include the Group of 77, the industrialized countries, the landlocked and the geographically disadvantaged states, the straits states, the broad margin group, the archipelagic states, the land-based producers, and the coastal states. However, the adoption of the final text of the Conference was not adopted by consensus – the US forced a vote. Why? The US and a number of other industrialized states had concerns about the deep seabed mining regime established under UNCLOS.

While UNCLOS was first signed in December of 1982, the agreement did not come into force until November of 1994, a period of nearly 12 years. UNCLOS required 60 signatures for ratification and could only enter into force one year after the final nation had ratified or acceded to the treaty. The Convention has 320 articles, set out in seventeen parts, as well as nine annexes. Parts II to XI concern the different maritime zones: territorial sea and contiguous zone, straits used for international navigation, archipelagic waters, the exclusive economic zone, the continental shelf, the high seas, the International Seabed Area, and special provisions on the regime of islands and of enclosed and semi-enclosed seas. Parts XII to XIV concern specific marine activities and questions in all areas: the protection of the environment, marine scientific research, and the development and transfer of marine technology. Part XV (and annexes 5 to 8) concerns the settlement of disputes. Parts XVI and XVII set out general and final clauses.

The main reason many nations took so long to sign the treaty is because of Article 309, which prohibits nations from taking out reservations to any part of a treaty. A reservation is a statement made by a nation when accepting a treaty, whereby it excludes or modifies the legal effect of certain provisions of a treaty as those terms apply to the nation accepting the treaty. The inability of a nation to take out reservations to particular terms of the treaty caused many nations to hesitate. UNCLOS represented a significant number of compromises and some of the terms of the agreement did not sit well with various nations. However, in order to establish a unified doctrine of the law of the sea, UNCLOS necessarily had to prevent reservations or risk maintaining a fractured regime.

For the most part, the treaty was greeted favorably, except for the provisions relating to deep seabed mining in Part XI and Annexes III and IV.  The United States and many developing countries refused to sign the 1982 agreement because they felt the deep seabed mining provisions were contrary to their economic interests by imposing high taxes and mandatory technology transfer to developing countries. To overcome the opposition from the United States and other countries, a new 1994 agreement relating to the implementation of the deep seabed mining provisions of the Sea Treaty was agreed to and opened for signature on July 28, 1994.

Somalia’s participation in the negotiation process

Since its first organizational session in 1973 in New York, Somalia had taken part in all the sessions of the Conference contributing in the formulation and adoption of the provisions of the Convention. A team of legal experts as well as senior Diplomats representing Somalia attended the protracted negotiation process which ended in 1982.To ensure the regular presence of Somalia in the Conference, a special committee (Guddiga Arrimaha Badda) was established whose component members were drawn from the Ministry of Foreign Affairs, Marine Affairs and Somali University. It should be noted that, the Committee continued its functions even after the adoption of the Convention in order to follow the works of the International Sea-Bed Authority (ISA) established by the Convention itself to regulate mining and related activities in the international seabed beyond national jurisdiction, an area considered as the heritage of mankind that includes most of the world’s oceans. The Somali Republic has ratified the Convention in 1989 (Decree N. 14 of 9th February 1989)

Within the negotiating process, Somalia was active in the group system which came into existence in 1972 such as the Coastal State Group (consisting of 76 coastal States) and Territorialist States (of 23 States). The members of the latter group were States whose national legislations provided for a territorial sea of more than 12 nautical miles and which wanted to retain such acquired rights under the new law of the sea treaty  In parallel with the works of the Conference Somalia took also part in international meetings held outside the UNCLOS framework, such as the Meeting of the Council of the Organization of African Unity (OAU) 1973 which resulted in the OAU Declaration on Issues of the Law of the Sea, and Meetings of the Afro-Asian Legal Consultative Committee from 1970 to 1982.

With the ratification of the Convention the Law N. 37 of 10 September, 1972, extending the breadth of territorial sea to 200 nautical miles, had lost ipso facto its legal force in the country as it had been superseded by the provision of article 3 of the Convention which recognizes to every State the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles. In fact, the ratification instrument reads: “The Convention and its Annexes shall have the force of Law in the Territory of the Somali Democratic Republic”. (Article 2 of Decree N.14 of 9th February 1989).

One of the most powerful features of UNCLOS III is the division of Ocean in four main zones:

Territorial Sea, Exclusive Economic Zone, and High Seas

Territorial Sea

The territorial sea which is a belt of sea of 12 nautical miles in breadth adjacent to the territory of a coastal State, including land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters; the sovereignty of a coastal State extends to its territorial sea. (Article 3) The new rules limiting the maximum breath of the territorial sea to twelve miles, clearly recognize the transit passage rights through and overflight over straits used for international navigation. Within the territorial sea, a nation has exclusive sovereignty over the water, seabed, and airspace. The treaty establishes that all nations have the right of innocent passage through the territorial sea of another nation and that, outside certain conditions, the nation laying claim to the territorial sea cannot hamper innocent passage of a foreign vessel (article 17)

At the start of the UNCLOS, only twenty-five nations maintained the traditional claim of 3 nautical miles. Sixty-six nations were claiming 12 nautical miles, fifteen nations claimed between 4 and 10 nautical miles, and eight nations were claiming 200 nautical miles. Smaller nations, including those without large navies or merchant fleets, favored a larger territorial sea in order to protect their coastal waters from infringements by more powerful nations. The world's major naval and maritime powers, on the other hand, pressed for the 3-mile rule because the 12-mile rule would have placed over 100 straits used for international navigation under the exclusive sovereignty of other nations. Some of these included the Strait of Gibraltar (the only open access to the Mediterranean), the Strait of Hormuz (the only passage to the oil-producing Persian Gulf and Gulf of Oman nations), and the Strait of Malacca (the main route connecting the Pacific and Indian Oceans

Remembering that the Cold War was still ongoing during the Convention, smaller nations were particularly concerned about the possibility of threats to their national security posed by warships of foreign nations or even the possibility of becoming embroiled in the conflicts of foreign powers. In an attempted compromise, the small nations offered the larger maritime powers the right of innocent passage; however the maritime powers were not satisfied with this offer. The problem, in the view of the great powers, was that restrictions to innocent passage would prohibit covert movements of vessels (such as submarines) and did not guarantee overflight rights, thereby creating a security risk.

In the end, the parties came together to form a compromise known as "transit passage." Applied specifically to straits that would otherwise fall within the territorial sea of a nation, transit passage applies to straits used for international navigation between one part of the high seas to another and allows for "navigation and overflight solely for the purpose of continuous and expeditious transit of [a] strait. In all other ways aside transit passage, the waters of a strait still remain the territorial sea of the adjacent nation.

Exclusive Economic Zone or patrimonial sea

The UNCLOS III added to the territorial sea, contiguous zone and continental shelf, a fourth maritime area where States were entitled to exercise sovereign rights – the exclusive economic zone or EEZ. A new concept of fundamental importance which has been asserted and which was the central issue of the Conference is that of the economic zone, known also as the patrimonial sea. This concept has been expressed chiefly in four documents:

1.      the Declaration of Santo Domingo approved by the meeting of Ministers of the Specialized Conference of the Caribbean  countries on Problems of the Sea held in June 1972

2.      the conclusion in the General Report of the African States Regional Seminar on the Law of the Sea held in Yaounde’, Cameroun, June 1972

3.      The Kenyan proposal on the Exclusive Economic Zone concept, in 1972, and

4.      The Addis Abeba Declaration of May 1973, adopted by the Council of Ministers of the Organization of African Unity.

The Exclusive Economic Zone or "EEZ" is a region that stretches a distance of no more than 200 nautical miles from a nation's baselines (Article 57). Within its EEZ, a nation may explore and exploit the natural resources (both living and non-living) found both in the water and on the seabed, may utilize the natural resources of the area for the production of energy (including wind and wave/current), may establish artificial islands, conduct marine scientific research, pass laws for the preservation and protection of the marine environment, and regulate fishing.

The establishment of this Economic Exclusive Zone does not affect the exercise, by all States, without discrimination, of the freedom of navigation, the freedom of overflight and freedom to lay submarine cables and pipelines (Article 58). The exclusive economic zone or EEZ, which is an area beyond and adjacent to the territorial sea but may not extend beyond 200 nm from the territorial sea baselines. In the EEZ, a State has sovereign rights to explore, exploit, conserve and manage the natural resources of the waters superjacent to the seabed and of the seabed and its subsoil; sovereign rights with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; and jurisdiction over artificial islands, installations and structures.

Continental Shelf

The continental shelf, which comprises the seabed and subsoil of the submarine areas that extend beyond the territorial sea to a distance of up to 350 nm where the natural prolongation of the land territory extends up to or beyond that distance, or to 200 nm where the natural prolongation of the land territory does not extend to that distance. A coastal State exercises sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources. A coastal State's rights over its continental shelf exist ipso facto and ab initio without there being any question of having to make a good claim to the areas concerned. Claims to a continental shelf beyond 200 nm are to be submitted to, and considered by, the Commission on the Limits of the Continental Shelf set up under Art. 76 (8) of UNCLOS. To date, however, the jurisprudence of the Court has been limited to delimitation claims up to 200 nm. Unlike the other ocean zones that have been thus far discussed, the continental shelf is described as a real, naturally-occurring geological formation. It is a gently sloping undersea plain between the above-water portion of a landmass and the deep ocean. The continental shelf extends to what is known as the continental slope, a point at which the land descends further and marks the beginning of the ocean itself. It is host to most of the world's oceanic plant and animal life and plays a vital role in energy production, from offshore oil and gas reserves to renewable energy resources.

If a coastal state fulfils complex geoscientific criteria laid out in the Convention it is entitled to claim continental shelf beyond 200 nm (article 76, paragraphs 4-7). Nations exercise over the shelf the sovereign right to explore and exploit the non-living natural resources of the continental shelf as well as the living organisms that live on the seabed itself.  Nations wishing to request an extension of sovereignty over an extended portion of their naturally occurring continental shelf must do so within 10 years of UNCLOS coming into force for that particular nation.

High Seas

Waters beyond a nation's EEZ are considered to be the high seas. The high seas are still governed the "freedom of the seas" concept, albeit a modified version. Just as with the classical version, no nation my lay claim to any portion of the high seas. Per the terms of the treaty, "[t]he high seas are open to all States, whether coastal or land-locked. On the high seas, nations are permitted freedom of navigation and over flight, freedom to lay submarine cables and pipelines, freedom to construct artificial islands, freedom of fishing, and freedom of scientific research (Article 87). Other provisions regarding the high seas include a prohibition on the transport of slaves, piracy, illegal drug trafficking, and the suppression of unauthorized radio or television broadcasting (Article 110). The Convention produced three main bodies   Beyond the EEZ/continental shelf lie the high seas which are open for use by all States, except in respect of resources of the seabed of the ocean floor and subsoil thereof, exploitation of which is to be managed by the International Seabed Authority, set up under UNCLOS for the common benefit of mankind.

The International Sea-bed Authority

The International Seabed Authority (ISA) is an international organization established in 1994 to regulate mining and related activities in the international seabed beyond national jurisdiction, an area that includes most of the world’s oceans. The ISA came into existence upon the entry into force of the 1982 United Nations Convention on the Law of the Sea, which codified international law regarding territorial waters, sea-lanes, and ocean resources. Everyone agreed that the mining on the seafloor beyond national jurisdiction would require the supervision of an International Seabed Authority (ISA). One of the most important parts of the Convention concerns the exploration for and exploitation of the resources of the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (the Area). The Convention declares the Area and its resources to be "the common heritage of mankind". Highly industrialized states that had corporations investing in deep sea mining wanted a weak ISA, a commercial mining system and protection for private companies' investments and technology. The complex ISA established under the Convention was unacceptable to developed states. However, without their participation no seabed mining would occur (they had the technology).

The supreme authority of the ISA is the assembly, in which all ISA members are represented. The assembly sets general policies, establishes budgets, and elects a 36-member council, which serves as the ISA’s executive authority. The council approves contracts with private corporations and government entities for exploration and mining in specified areas of the international seabed, oversees implementation of the seabed provisions of the Convention on the Law of the Sea, and establishes provisional rules and procedures (subject to approval by the assembly) by which the ISA exercises its regulatory authority. The secretary-general of the ISA is nominated by the council and is elected by the assembly to a four-year term. The ISA’s annual plenary sessions, which usually last two weeks, are held in Kingston. The ISA is headquartered in Kingston, Jamaica, and has more than 150 state members.

The Tribunal of the Law of the Sea

The International Tribunal for the Law of the Sea is an independent judicial body established by the United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention. The Tribunal is composed of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.

The Tribunal has jurisdiction over any dispute concerning the interpretation or application of the Convention, and over all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal (Statute, article 21). The Tribunal is open to States Parties to the Convention (i.e. States and international organizations which are parties to the Convention). It is also open to entities other than States Parties, i.e., States or intergovernmental organizations which are not parties to the Convention, and to state enterprises and private entities "in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case" (Statute, article 20). The Seat of the Tribunal is in the Free Hanseatic City of Hamburg, in the Federal Republic of Germany.

The Commission

The Commission on the Limits of the Continental Shelf is an international treaty body formed pursuant to Annex II of UNCLOS and composed of 21 experts in the field of geology, geophysics or hydrography elected by State parties to the Convention from among their nationals who shall serve in their personal capacity (Article 2 of Annex II). The first members of the Commission were elected in March 1997, the Commission adopted its initial rules in June 1997, and the Commission’s scientific and Technical Guidelines were adopted in May1999. The primary function of the Commission is “to  consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where these limits extended beyond 200 nautical miles, and to make recommendations in accordance with article 76”. The Commission is a scientific and technical body whose sole mandate is on the seaward outer limit of wide margin shelves claimed on the basis of the geologic, geomorphologic, hydrographic and geographic criteria provided for in article 76 of the Convention and elaborated in the Commission’s Scientific and Technical Guidelines. It is the coastal State to establish its continental shelf outer limit on the basis of those recommendations.