Abstract
The legal certainty sought through the adoption of convention norms is at odds with the constant evolution of science and technology. This chapter addresses the delineation of the outer limits of the continental shelf as a case study into the interplay between international law, on the one hand, and science and technology, on the other hand. The 1958 Convention on the Continental Shelf and the 1982 United Nations Convention on the Law of the Sea (UNCLOS) offer opposite methods to address these difficulties. The 1958 Convention contained an open-ended reference to technology that translated into a real-time evolution of the outer limits of the continental shelf at the expense of the stability that all jurisdictional limits should guarantee. UNCLOS incorporated complex scientific and technical concepts, but neutralized their evolutionary nature by freezing them into the definition contained in its Article 76; the difficulty of implementing its criteria for the delineation of the outer limits of the continental shelf beyond 200 nautical miles has increased as the theoretical model on which Article 76 rests has aged due to the progress in our understanding of the seafloors. This chapter provides an overview of the evolution of the continental shelf doctrine as well as an analysis of recent trends and challenges in the delineation of the outer limits of the continental shelf beyond 200 nautical miles as by-products of the obsolescence of the theoretical model contained in Article 76.
The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.
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Notes
- 1.
UNTS 1833, p. 3.
- 2.
“The continental shelf extends from the shore to the top of the continental slope. The continental slope is the section of the seabed bordering the continental shelf. It is rather steep and brings the water depth from a few hundred metres, at the edge of the shelf, down to anywhere between 3,500 and 5,500 metres at the foot of the continental slope. In general, the continental slope is formed near the edge of the continental mass where the continental crust thins considerably and merges with the oceanic crust. […] The continental rise, a feature of many coastal States, is an area of very gentle dip between the foot of the continental slope and the deep ocean floor. The typical continental rise is a wedge-shaped layer of sediments derived from the shelf areas and accumulated next to the base of the slope – in many places prograding partly onto the oceanic crust.” United Nations (2006), Module I, p. 11.
- 3.
3 Last searched on 30 January 2022, at https://www.google.com/search?q=how+deep+is+the+ocean.
- 4.
Churchill and Lowe (1991), p. 122.
- 5.
For an account of early depth measurement techniques, see Shipman and Laughton (2000).
- 6.
Vaughan (1940), p. 1.
- 7.
Ibidem, p. 2. See also Shipman and Laughton (2000), p. 124.
- 8.
Vaughan (1940), p. 8.
- 9.
Edvalson and Miscoski (1969), p. 2.
- 10.
Churchill and Lowe (1991), p. 121.
- 11.
ILC (1950), p. 73.
- 12.
Hurst (1923–1924), pp. 42–43.
- 13.
Churchill and Lowe (1991), p 121.
- 14.
- 15.
Hardwicke (1949), p. 22.
- 16.
ILC (1950), p. 75.
- 17.
Mill (1892), p. 194.
- 18.
E.g. Miguel Ruelas (1930).
- 19.
“[C]ertain states have participated in the continental shelf race principally to extend their claims over high seas fisheries”—Morris (1958), p. 38. Cosford (1958), p. 246, traces back the introduction of the concept of the continental shelf to a 1910 decree enacted by Portugal to prohibit trawl fishing practices which were destroying the environment of the continental shelf and affecting the fish stocks which relied on it. For the decree’s purposes the continental shelf was defined by reference to the 100 fathom isobath. The Portuguese Decree Regulating Fishing by Steam Vessels of 9 November 1910 is reproduced in United Nations, High Seas Laws, pp. 19–21. See also ILC (1950), p. 48, p. 54, and especially pp. 56–57 citing additional examples dating back to 1916.
- 20.
- 21.
Proclamation 2667 of September 28, 1945 - Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf. 10 Fed. Reg. 12,305 (1945). Reproduced in United Nations Legislative Series, Laws and Regulations on the Regime of the High Seas (ST/LEG/SER.B/1), at 38 (UN Sales No. 1951.V.2 (1951).
- 22.
United Nations Legislative Series, Laws and Regulations on the Regime of the High Seas (ST/LEG/SER.B/1), p. 39 (UN Sales No. 1951.V.2 (1951).
- 23.
Colombos (1967), p. 71.
- 24.
“[…] since the continental shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it […]”; “[…] since [its natural] resources frequently form a seaward extension of a pool or deposit lying with the territory […]”. An interesting example of State practice in which the concept of continuity of the continental shelf was relied on prior to the Truman Proclamation, but for different purposes, is that of a 1916 declaration made by the Imperial Russian Government claiming a number of uninhabited islands because “they formed the northern continuation of the Siberian continental shelf”—ILC (1950), p. 56.
- 25.
“[…] the continental shelf beneath the high seas but contiguous to the coasts of the United States […]”. The proclamation also established a conceptual link between contiguousness and effectiveness as follows:
[…] the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just, since the effectiveness of measures to utilize or conserve these resources would be contingent upon cooperation and protection from the shore […].
- 26.
Hurst (1948), p. 161.
- 27.
“[…] self-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources […]”.
- 28.
“The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way […] affected.” The press release which accompanied the issuance of the Proclamation further clarified that the new policy did not purport to “extend the present limits of the territorial waters of the United States”.
- 29.
E.g. Chile’s Presidential Declaration Concerning the Continental Shelf enacted on 23 July 1947, reproduced in Maritime Dispute (Peru v. Chile), Memorial of the Government of Peru, Volume 1, p. 108. Peru’s Supreme Decree No. 781 of 1 August 1947, - reproduced in Maritime Dispute (Peru v. Chile), Judgment I.C.J. Report 2014, p. 3, at para 38.
- 30.
- 31.
- 32.
For references to the 200 nautical miles criterion see e.g. the Proclamations by Chile (Decree of 23 June 1947); Peru (Decreto Supremo of 1 August 1947, No. 781 - Revista Peruana de derecho internacional, Vol. 7, p. 301) and Costa Rica (Decree of 27 July 1943, No. 116, Gaceta, Costa Rica, 29 July 1948; Decree of 2 November 1949, No. 803, ibid., 5 November 1949). For references to the 200 m depth, see e.g. the above-mentioned press-release issued in connection with the Truman Proclamation or Mexico’s Decree of 25 February 1949 (Diario Oficial, 11 March 1949).
- 33.
Matter of an Arbitration between the Petroleum Development (Trucial Coast) Limited and His Excellency Sheikh Shakhbut Bin Sultan Bin Za’id, Ruler of Abu Dhabi and its Dependencies - 1 ICLQ 247. On the continental shelf aspects of this arbitration see Cosford (1953).
- 34.
UNTS vol. 499, p. 311.
- 35.
- 36.
Yearbook of the International Law Commission 1949, p. 43, at para 62. For a brief overview of the work of the ILC in the field of the law of the Sea, see United Nations (2017), pp. 130–138. In general, all documents of the ILC are available on the website maintained by the Codification Division of the Office of Legal Affairs of the United Nations at https://legal.un.org/ilc/documentation/.
- 37.
Given the inconsistent and interchangeable use of the terms “delineation” and “delimitation” that can be found in both literature and official documents, it is noted that for the purposes of this article the term “delineation” is utilized in relation to the outer limits of a maritime zone, whereas “delimitation” is used with regard to maritime boundaries.
- 38.
Colombos (1967), p. 77.
- 39.
The fact that in 1956 a number of Latin American Governments emphatically supported the exploitability criterion, at a time when it appeared to have been set aside by the ILC in favour of the 200 m criterion, could be interpreted in that light. See Final Act - Inter-American Specialized Conference on Conservation of Natural Resources of the Continental Shelf and Marine Waters, Ciudad Trujillo, 15–28 March 1956. Pan American Union, 1956, 13.
- 40.
In general, all documents of UNCLOS I are available on the website maintained by the Codification Division of the Office of Legal Affairs of the United Nations at https://legal.un.org/diplomaticconferences/1958_los/.
- 41.
51 votes in favour, nine against, and ten abstentions - A/CONF.13/C.4/SR.19, pp. 4–5.
- 42.
A wide range of proposals can be found in A/CONF.13/C.4/L.1; UNCLOS I, Official Records, Vol. VI, pp. 2–3; A/CONF.13/C.4/L.11; A/CONF.13/C.4/L.7; A/CONF.13/C.4/L.8; A/CONF.13/C.4/L.29/Rev. 1; A/CONF.13/2, especially pp. 40–41; A/CONF.13/C.4/L.12; A/CONF.13/C.4/L.30; A/CONF.13/C.4/SR. 19, pp. 2, 3; A/CONF.13/C.4/L.30; A/CONF. 13/C.4/SR.19, p. 3); 28 A/CONF.13/C.4/L.4.
- 43.
See the obiter dictum contained in the Judgment of 20 February 1969 in the North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), para 63 - I.C.J. Reports 1969, p. 3, at p. 39.
- 44.
Churchill and Lowe (1991), p. 125.
- 45.
Consider the statement by the ILC in A/13/19.
- 46.
Third preambular paragraph of resolution 2574A (XXIV) of 15 December 1969 https://undocs.org/en/A/RES/2574(XXIV).
- 47.
Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction, established by General Assembly resolution 2467A (XXIII) of 21 December l968 https://undocs.org/en/A/RES/2467(XXIII).
- 48.
Report of Sub-Committee II, A/AC.138/95, para 51, reproduced in I SBC Report 1973, Annex I, at 38. For an overview of the deliberations that took place within the Sea-bed Committee see Virginia Commentary, sections 76.3–76.4.
- 49.
For a practical yet comprehensive synopsis of UNCLOS III’s Second Committee negotiations concerning the continental shelf regime, see Virginia Commentary, Part VI.
- 50.
For an overview of the early positions of delegations with regard to the definition of the continental shelf see the so-called Main Trends Working Paper (official title: Statement of activities of the Conference during its first and second sessions - A/CONF.62/L. 8/Rev.1) p. 117.
- 51.
See e.g. A/CONF.62/ SR.46, para 46.
- 52.
Declaration of Principles Governing the Sea-Bed and Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction - General Assembly resolution 2749 (XXV) of 17 December 1970. For the purposes of this article, the gender-biased formulation of “common heritage of mankind” is used insofar as it reflects the language of the Convention. The more appropriate way to refer to it would otherwise be the common heritage of “humankind” or “humanity”.
- 53.
Virginia Commentary, part VI.8.
- 54.
Within the Second Committee an informal consultative group on the continental shelf was established during the third session, A/CONF.62/C.2/L.89/Rev. 1, para 5.
- 55.
Article 61 - A/CONF.62/WP.8/PART II, available at https://legal.un.org/diplomaticconferences/1973_los/vol4.shtml. A similar proposal had been made to the plenary of the second session by a group of nine States, see Article 19 in A/CONF.62/L.4, available at https://legal.un.org/diplomaticconferences/1973_los/vol3.shtml.
- 56.
A/CONF.62/C.2/L.98, footnote at p. 189.
- 57.
For a description of the concepts of continental slope and rise see fn 2.
- 58.
A metaphor used in Carleton and Cook (2000), p. 271.
- 59.
A/CONF.62/C.2/L.98, footnote at p. 189.
- 60.
Para. 13 of the introductory note to the Revised Single Negotiating Text (RSNT), A/CONF.62/WP.8/Rev.1/PartII.
- 61.
A/CONF.62/L.17, paras. 33–39.
- 62.
A preliminary study and map were made available at the seventh session (A/CONF.62/C.2/L.98), whereas the final version of the study and map were issued at the eighth session (A/CONF.62/C.2/L.98/dd.1-3). This study and maps reflected the contribution of the Lamont-Doherty Geological Observatory of Columbia University, selected on the basis of its expertise and database, and were reviewed by Guiding Committee for the General Bathymetric Chart of the Oceans (GEBCO), a joint expert group of the Intergovernmental Oceanographic Commission (IOC) of UNESCO and the International Hydrographic Organization (IHO).
- 63.
See previous footnote.
- 64.
A/CONF.62/C.2/SR.50 para 23 (emphasis added).
- 65.
Study of the implications of preparing large-scale maps for the Third United Nations Conference on the Law of the Sea (A/CONF.62/C.2/L.99), at para 24.
- 66.
Id. at para 29.
- 67.
For a review of the types of ridges and issues related to them see Symonds et al. (2000).
- 68.
Oxman (1980), at fn 75.
- 69.
A/CONF.62/C.2/SR.50, para 22.
- 70.
In this regard, see the Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, decision of 11 April 2006, para 213. Available at https://pca-cpa.org/en/cases/104/. 27 United Nations Reports of International Arbitral Awards (RIAA) 147, at 208–9.
- 71.
“So stylized was the relationship between the opposing sides that for a considerable period, to symbolize its emergence from the center rather than from any delegations, and perhaps to suggest a customary affection for tea among the original chefs, the proposal was called the ‘biscuit’”. Oxman (1980), fn 66.
- 72.
The fact that provisions of the Statement of Understanding were not included in Article 76 but annexed to the Final Act of the Conference has to do with the fact that they were introduced at a late stage of the Conference, when delegations were weary of reopening deliberations on Article 76. Annex II to the Convention makes sure that the Commission applies the Statement of Understanding by describing its main function as follows:
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 ( Article 3, para 1(a) - emphasis added).
- 73.
A/AC.138/25 (1970), outlining the role of an International Seabed Boundary Review Commission.
- 74.
Stevenson and Oxman (1975), p. 782.
- 75.
A/CONF.62/WP. 10/Rev.1, Article 76, para 7.
- 76.
Suarez (2008), p. 77.
- 77.
Virginia Commentary, section A.II.6 and A.II.7.
- 78.
A/CONF.62/WP.10/Rev.3, pp. 128–129.
- 79.
Virginia Commentary, p. 850.
- 80.
A late proposal to change “recommendations” into “decisions” was not successful (see Virginia Commentary, section 76.15).
- 81.
Oxman (1981), p. 230.
- 82.
A/CONF.62/WS/4, para 15.
- 83.
E.g. National Oceanic and Atmospheric Administration, How Much of the Ocean Have We Explored? https://oceanservice.noaa.gov/facts/exploration.html; and Jon Copley, Just How Little Do We Know about the Ocean Floor? Scientific American https://www.scientificamerican.com/article/just-how-little-do-we-know-about-the-ocean-floor/.
- 84.
CLCS/72. All documents of the MSP are available at https://www.un.org/depts/los/meeting_states_parties/SPLOS_documents.htm.
- 85.
CLCS/11, and /Corr.1, /Corr.2, /Add.1, /Add.1/Corr.1, /Add.1/Corr.2. All documents of the CLCS are available at https://www.un.org/Depts/los/clcs_new/commission_documents.htm.
- 86.
Guidelines, para 1.1.
- 87.
Guidelines, para 1.2.
- 88.
Guidelines, para 1.3.
- 89.
SPLOS/183, para. 1(a).
- 90.
- 91.
For an insider overview of the process of the preparation of a submission see Roest (2017).
- 92.
E.g. SPLOS/310, para 27; or CLCS/95, para 111.
- 93.
SPLOS/31/6, para 16.
- 94.
The estimates were based on the study referred to in footnote 62. See also Taft (2007), p. 470.
- 95.
Carleton and Cook (2000), p. 268.
- 96.
Monahan (2005), p. 77.
- 97.
Schofield and van der Poll (2012), p. 72.
- 98.
As at 30 January 2022. The list of submission is available at https://www.un.org/Depts/los/clcs_new/commission_submissions.htm.
- 99.
The making of revised submissions alters the progress of the queue. At its twenty-sixth session the Commission decided that revised submissions would be considered on a priority basis notwithstanding the queue—CLCS/68, para 57.
- 100.
Partial submissions inevitably extend the workload of the Commission. A submission that, for argument’s sake, includes only one third of a coastal State’s potential continental shelf beyond 200 nautical miles will in all likelihood require much more than one third of the time that a full submission for the entire area would have entailed.
- 101.
Carrera Hurtado (2017), p. 19.
- 102.
Carleton and Cook (2000), p. 271.
- 103.
For the background to this formula see Hedberg (1973).
- 104.
Statement of the delegate of Sri Lanka at the seventh session, 104th plenary meeting, in A/CONF.62/SR.104, paras. 27–29.
- 105.
Other coastal States have subsequently argued that the Statement of Understanding could also be applied in areas other than the Bay of Bengal, provided that the criteria outlined in the Statement of Understanding are met, a position that Sri Lanka has refuted on the basis of its interpretation of the legislative history of the Statement of Understanding. See e.g. the communications of Sri Lanka dated 2 March 2009 and 22 July 2009 concerning the submissions to the CLCS made, respectively by Myanmar and Kenya, respectively, available at https://www.un.org/Depts/los/clcs_new/submissions_files/submission_mmr.htm and https://www.un.org/Depts/los/clcs_new/submissions_files/submission_ken_35_2009.htm.
- 106.
See Virginia Commentary, p. 1004.
- 107.
Ibidem.
- 108.
A/CONF.62/L.65, para 1 (emphasis added).
- 109.
Ibidem, para 46.
- 110.
Ibidem, para 47 (emphasis added).
- 111.
SPLOS/229, para 1.
- 112.
CLCS/76, para 11; CLCS/100, para 14.
- 113.
See Article 5, para 1, of Annex VI to the Convention.
- 114.
See Article 2, paras 1 and 4, of annex II to the Convention.
- 115.
Both the CLCS and the MSP, including through a working group established ad hoc, have included the review of the conditions of service of the members of the Commission, as reported in the statements of the Chairperson in regard to the CLCS sessions and the reports of the MSP.
- 116.
Article 2.5, Annex II to the Convention. The same paragraph also clarified how the costs relate to the provision of scientific and technical advice to coastal States that requested it, establishing that “[t]he coastal State concerned shall defray the expenses incurred in respect of the advice referred to in Article 3, paragraph 1(b), of this Annex.” The shortcomings of this approach were outlined by a number of delegations during the Conference—see e.g. A/CONF.62/SR.127, A/CONF.62/SR.128, A/CONF.62/SR.135, A/CONF.62/SR.136, and A/CONF.62/SR.138.
- 117.
As at 30 January 2022, the latest developments in this regard can be found at SPLOS/31/9, paras 60-63.
- 118.
See Oxman (1981), p. 255.
- 119.
Emphasis added.
- 120.
Citing the first report by Francois, however, Mouton (1952) expressed doubt that the fact that the shelf could be considered as “an extension of the continent into the sea” would have any legal relevance; the fact that the continental shelf is covered by the sea, which has a different regime than the land, for instance, would appear to be more relevant—p. 33.
- 121.
Oxman (1979), p. 21.
- 122.
Consider e.g. this dictum by the ICJ:
[i]t should also be noted in this regard that in no case may the line be interpreted as extending more than 200 nautical miles from the baselines from which the breadth of the territorial sea is measured; any claim of continental shelf rights beyond 200 miles must be in accordance with Article 76 of the Convention and reviewed by the Commission on the Limits of the Continental Shelf established thereunder.
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 659, at para 319. Available at https://www.icj-cij.org/en/case/120.
- 123.
Available at https://www.itlos.org/index.php?id=108. See also the 2014 Award in the Matter of the Bay of Bengal Maritime Boundary Arbitration between The People’s Republic of Bangladesh and The Republic of India, available at https://pca-cpa.org/en/cases/18/ and the 2017 Judgement in the Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire) available at https://www.itlos.org/en/main/cases/list-of-cases/case-no-23/.
- 124.
E.g. para 394 of the Judgment of the International Tribunal for the Law of the Sea of 14 March 2012 in the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) - Available at https://www.itlos.org/index.php?id=108. After concluding that it had an obligation to adjudicate the dispute, the Tribunal observed that “[s]uch delimitation is without prejudice to the establishment of the outer limits of the continental shelf in accordance with Article 76, paragraph 8, of the Convention”. The roots of this position could be found in the Arbitral Award in the Matter of an Arbitration Between Barbados and the Republic of Trinidad and Tobago of 2006. On that occasion, the Arbitral Tribunal rejected Barbados’ contention that “delimitation of the outer continental shelf in the way proposed by Trinidad and Tobago would, in Barbados’ view, interfere with the core function of the Commission on the Limits of the Continental Shelf” (paragraph 28 of the Award).
- 125.
United Nations, The United Nations Convention on the Law of the Sea (A Historical Perspective). http://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm.
- 126.
Tuerk (2021), pp. 237–238.
- 127.
This circumstance is made even more concerning when considering that coastal States that have received recommendations do not seem to be in any hurry to establish their outer limits on the basis of those recommendations. As at 30 January 2022 only 10 outer limits of the continental shelf have been deposited with the Secretary-General of the United Nations out of 35 recommendations approved by the Commission. Compare the information available at https://www.un.org/Depts/los/clcs_new/commission_submissions.htm with that at https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/regionslist.htm. On this matter see: Lodge (2017), pp. 1–2. It should be noted in this regard that the Convention does not specify a time-line for the establishment of these outer limits.
- 128.
Oxman (1981), p. 231.
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Santosuosso, L. (2022). The Last Frontier: Trends and Challenges Related to the Delineation of the Outer Limits of the Continental Shelf Beyond 200 Nautical Miles. In: Arcari, M., Papanicolopulu, I., Pineschi, L. (eds) Trends and Challenges in International Law. Springer, Cham. https://doi.org/10.1007/978-3-030-94387-5_11
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