The continental shelf is rich in natural resources and highly prized by coastal States fortunate enough to possess a continental margin. It is not surprising, therefore, that this is one area of the law of the sea where reasonably detailed rules have emerged gov erning the rights to explore and exploit the resources of this region.
Table of Content
Treaties governing Continental Shelf
These customary rules are mirrored and developed in the 1982 UNCLOS Convention. Many of the principles of continental shelf delimitation have developed through the jurisprudence of the ICJ. Of particular interest is the question of the seaward limit of the continental shelf. SO three major provisions Apply : -
Customary Law
Geneva Convention on Continental Shelf, 1958(Redundant Now)
UNCLOS Convention 1982.
The Geneva Convention on Continental Shelf, 1958 Convention adopts a criterion of exploitability, while the 1982 Convention favours an automatic right to a shelf within 200 miles, with an extension if geomorphology permits. Clearly, for State parties to the 1982 Convention the matter is now settled.
For other States, it may be that customary international law has developed to such an extent that the Geneva Convention on Continental Shelf, 1958 Convention is redundant.
Defining of Continental Shelf
Article 76 explains what the continental shelf of a coastal country is and how its boundaries are determined. The provisions of article can summarised as follows:
The continental shelf is the underwater land connected to a country's coast, extending beyond its territorial sea. It reaches up to the outer edge of the continental margin or 200 nautical miles from the coast, whichever is less, unless the continental margin extends further.
The boundaries of the continental shelf should not go beyond what paragraphs 4 to 6 say.
The continental margin is the underwater extension of the country's land, including the seabed and the ground underneath the shallow sea (shelf), the slope, and the rise up to the deep ocean, but not the deep ocean floor or its subsoil.
To define the outer edge of the continental margin extending beyond 200 nautical miles:
(a) Use a line based on where the seabed sediment is thickest or not more than 60 nautical miles from where the slope of the continental shelf ends.
(b) The starting point of the slope is considered where the seabed's angle changes the most, unless proven otherwise.
The boundary lines of the continental shelf must not stretch more than 350 nautical miles from the coast or more than 100 nautical miles from the 2,500-meter-deep contour line.
However, over submarine ridges, the shelf's boundary can extend up to 350 nautical miles, not applying to natural underwater features like plateaus or banks.
When the continental shelf extends beyond 200 nautical miles, its outer limits must be marked with straight lines no longer than 60 nautical miles, connecting specified points.
This article's rules don't affect how countries with coasts facing each other or next to each other decide where their continental shelves are divided.
Case Law on Definition
As Article 76 makes clear, the outer edge of the legal institution of the shelf may extend beyond 200 miles if the physical feature continues. The ICJ has confirmed that the definition of the continental shelf set out in Article 76(1) reflects customary international law, although it did not need to determine if other aspects of the Article were also customary: see Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment ICJ Reports II 624 (2012)
In order to establish with clarity where such shelf rights end, the 1982 Convention (Article 76(8)) established the Commission on the Limits of the Continental Shelf (CLCS) whose purpose it is to consider data submitted by coastal States concerning the outer edge of the shelf beyond 200 miles (the extended continental shelf), to provide technical and scientific advice, and to make recommendations (see Annex II to the 1982 Convention). The Commission comprises scientific and technical, but not legal, expert. (bangladesh v myanmar)
Coastal State Right over continental Shelf
Article 77 outlines the coastal country's rights over its continental shelf in a simplified manner:
A coastal country has the exclusive authority to explore and use the natural resources found on its continental shelf (Article 77(1).
These rights are unique, meaning that if the coastal country does not use these resources, no one else can do so without the country's explicit permission (Article 77(2).
The country's rights to the continental shelf are inherent and do not require physical occupation or any formal declaration to be established (Article 77(3).
"Natural resources" includes minerals and other inanimate materials from the seabed and beneath it, as well as organisms that are stationary or can only move in direct contact with the seabed or subsurface at the time they are collected (Article 77(4).
RIght of Other State
Article 78: Legal Status of the Superjacent Waters and Air Space and the Rights and Freedoms of Other States
Superjacent Waters and Airspace Rights: A coastal state's control over its continental shelf does not change the legal status of the waters above the shelf or the airspace above those waters. This means that the waters and airspace remain international for navigation and flight.
Rights of Other States: When a coastal state exercises its rights over the continental shelf, it must not interfere unjustly with the rights of other states to navigate and enjoy other freedoms guaranteed by international law.
Article 79: Submarine Cables and Pipelines on the Continental Shelf
Right to Lay Cables and Pipelines: All countries can lay submarine cables and pipelines on the continental shelf according to specific rules.
Coastal State Restrictions: While a coastal state can regulate activities for exploring and exploiting the continental shelf's resources, including pollution control, it cannot prevent the laying or maintenance of cables and pipelines except for reasonable measures.
Path of Pipelines: The exact path for laying pipelines on the continental shelf needs the coastal state's approval.
Article 82: Payments and Contributions with Respect to the Exploitation of the Continental Shelf Beyond 200 Nautical Miles
Payments for Resource Exploitation: A coastal state must make payments or contributions for exploiting non-living resources from the continental shelf beyond 200 nautical miles from its territorial sea baseline.
Exemption for Developing States: A developing country that imports more of a mineral resource than it exports, produced from its continental shelf, does not have to make these payments for that resource.
Distribution of Payments: Payments or contributions are made through an international authority, which then distributes them fairly among all states party to UNCLOS, focusing on the needs and interests of developing countries, especially the least developed and landlocked nations.
These articles aim to balance the rights of coastal states with the rights and freedoms of other states, ensuring equitable access and benefits from ocean resources while preserving international navigation and overflight rights.
Delimitation of a shared continental shelf
Delimitation of a shared continental shelf between opposite or adjacent States has pro vided the ICJ with considerable work. The relevant legal provisions are found in Article 6 of the 1958 Convention, Article 83 of the 1982 Convention and customary international law. As is evident from the extracts in this section there has been disagreement as to how these legal principles can be given practical effect in concrete cases.
In addition, reference must also be made to the principles applicable to delimitation of the EEZ and so- called single maritime boundaries, that is, a delimitation of the continental shelf, EEZ, territorial sea and contiguous zone (or any combination thereof) between opposite or adjacent States by means of a single boundary rather than a boundary for each jurisdictional zone.
Article 83 outlines how countries with coasts facing each other or next to each other should agree on the boundaries of their continental shelves:
Countries should decide on the boundaries of their continental shelves through agreements based on international law, specifically referring to Article 38 of the Statute of the International Court of Justice, aiming for a fair solution (Article 83(1).
If these countries can't reach an agreement after a reasonable time, they should follow the dispute resolution processes outlined in Part XV of the same document (Article 83(2).
While trying to reach a final agreement, the countries should cooperate and try to make temporary arrangements that are practical and do not affect the chances of reaching a permanent agreement in the future. These temporary arrangements won't affect the final decision on the boundaries (Article 83(3).
If there's already an agreement about the continental shelf boundaries between the countries involved, then that agreement will be used to decide any questions about those boundaries (Article 83(4).
As regards delimitation of the shelf between opposite and adjacent States, the ICJ has attempted to develop a set of criteria to enable a delimitation to be made that is objectively valid and based on legal principles. The move from the formalistic approach of the North Sea Cases to the flexible, result- orientated approach of Libya v Malta and Denmark v Norway (see Section 4B) has been welcomed by some and rejected by others. Essentially, customary international law, the 1958 Convention and the 1982 Convention are all said to require the same result: an equitable solution.
However, it is questionable whether the principles and rules identified by the Court
enable States to delimit their shelf themselves with any degree of certainty. Delimitation of the continental shelf is discussed further in Section 4B, in the context of the delimitation of common maritime boundaries for both the EEZ and the continental shelf. Lets now Learn these Cases in Detail
North Sea Continental Shelf Case
The North Sea Continental Shelf Cases involved disputes between the Federal Republic of Germany (FRG), Denmark, and The Netherlands regarding the division of the continental shelf in the North Sea. The key legal points from the International Court of Justice (ICJ) decision include:
Non-applicability of the 1958 Convention: The FRG was not bound by the 1958 Convention's equidistance-special circumstance rule as it was not a party to the Convention. Thus, Article 6 of the Convention did not apply to it as a mandatory rule of customary international law (Para 83).
Equitable Principles Over Equidistance: The court emphasized that the equidistance method is not a compulsory rule of law for all situations. Instead, delimitation of continental shelves must be achieved through agreements between states based on equitable principles. This approach stems from the foundational idea that justice and good faith should guide the delimitation process, rather than a rigid application of the equidistance method (Para 85).
Obligations in Negotiations: States are obligated to engage in meaningful negotiations aiming for an equitable agreement on delimitation. This process should not be merely formal or unyielding but should consider adjustments to positions for a fair resolution. States are expected to apply equitable principles flexibly, considering each case's specific circumstances (Para 85).
Natural Prolongation and Non-encroachment: Any delimitation must respect the principle that a state's continental shelf is a natural extension of its land territory and must not infringe upon another state's natural prolongation (Para 85).
Inequities of the Equidistance Method: The court recognized that the equidistance method could lead to unfair outcomes, particularly in areas with irregular coastlines such as concave or convex shores. It highlighted the need to adjust or compensate for these effects to avoid inequities (Para 89).
Equity and Proportionality: The court clarified that equity does not imply strict equality. Delimitation should consider the natural geographic and geological features of the continental shelf and aim for a reasonable degree of proportionality between the continental shelf area and the length of the coastal State's coastline. This consideration helps balance differences between states with various coastline shapes and sizes (Paras 91, 98).
Unity of Deposits: In delimiting continental shelves, it's crucial to consider the unity of natural resource deposits. Delimitation should aim to preserve the integrity of these deposits to maintain the legal regime's objectives established for continental shelves (Para 97).
Libya v Malta Case
The Continental Shelf Case between Libya and Malta involved the International Court of Justice (ICJ) delineating principles for continental shelf delimitation when the 1958 Convention did not apply. Key legal points from the ICJ's decision include:
Integration of EEZ and Continental Shelf Concepts: Despite focusing on the continental shelf, the Court considered principles underlying the Exclusive Economic Zone (EEZ) because of their modern legal interconnection. The Court indicated that the rights over the continental shelf and the seabed of any EEZ a state might proclaim are intertwined, emphasizing the role of distance as a common factor in both concepts (Para 33, 34).
Complementary Nature of Natural Prolongation and Distance: The Court rejected the idea that natural prolongation and distance are opposing concepts. Instead, it described them as complementary, essential in defining the continental shelf's legal concept, especially when the continental margin does not extend to 200 miles from the shore (Para 34).
Equitable Principles as Normative Character: The Court highlighted the importance of equitable principles in international law, which govern both judicial and arbitration delimitation, as well as negotiations between parties seeking an equitable delimitation agreement (Para 46).
Rejection of Landmass as a Basis for Entitlement: The Court dismissed the argument that a state's entitlement to continental shelf rights could be based on its landmass, stating no support for this idea in state practice, jurisprudence, doctrine, or international law discussions (Para 49).
Economic and Security Considerations in Delimitation: The Court found that economic disparities between states should not influence continental shelf delimitation to compensate for one state's economic inferiority. It also noted that while security considerations relate to the continental shelf concept, they do not significantly influence delimitation in this case (Paras 50, 51).
Role of Proportionality and Coastal Lengths: The Court discussed proportionality, emphasizing it should not directly determine the extent of each party's continental shelf. Proportionality serves as a test of equity and a corrective measure rather than a standalone method. However, significant differences in coastline lengths could be considered at a certain stage of the delimitation process (Para 58).
The ICJ's decision in the Libya v. Malta case underscores the evolution and complexity of principles governing maritime delimitation, incorporating modern legal concepts like the EEZ, while reinforcing the importance of equitable principles and the necessity of considering a variety of factors beyond mere distance and natural prolongation.
Bangladesh v myanmar
The Dispute Concerning the Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal addressed by the International Tribunal for the Law of the Sea (ITLOS) on 14 March 2012, raised questions about ITLOS's jurisdiction to delimit the continental shelf beyond 200 nautical miles (nm) and how to apply relevant principles in practice. Key legal conclusions from the judgment include:
Jurisdiction Over Extended Continental Shelf Delimitation: ITLOS clarified that the absence of established outer limits for the continental shelf does not prevent it from delimiting that zone. The Tribunal emphasized that disputes over baselines had not previously hindered delimitation of the territorial sea or exclusive economic zone (EEZ), hence, similar principles apply to the continental shelf beyond 200 nm (Para 369-370).
Role of the Commission: ITLOS recognized the important role of the Commission on the Limits of the Continental Shelf, as provided for in Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS), and its special expertise in geology, geophysics, or hydrography. However, the Tribunal also pointed out that the Commission's functions and recommendations on the outer limits of the continental shelf do not impede the delimitation of maritime boundaries (Paras 371, 375-377).
Distinction Between Delimitation and Delineation: ITLOS highlighted the clear distinction between the delimitation of the continental shelf under Article 83 of UNCLOS and the delineation of its outer limits under Article 76. While the Commission is tasked with making recommendations on the outer limits, this function does not affect the delimitation of maritime boundaries, which falls within the jurisdiction of international courts and tribunals (Para 376).
Entitlement to Continental Shelf: The Tribunal asserted that a coastal state's entitlement to the continental shelf exists solely by the fact of its sovereignty over land territory and does not depend on the establishment of outer limits. This entitlement to the continental shelf beyond 200 nm remains even if those outer limits have not been formally established (Para 409-410).
Tribunal's Authority and Expertise: ITLOS affirmed its capability to interpret and apply UNCLOS provisions, including Article 76, which involves both legal and scientific expertise. While the Commission focuses on scientific and technical issues related to the continental shelf's outer limits, ITLOS can address legal aspects and even engage with scientific materials or experts as necessary (Para 411).
This judgement underlines ITLOS's authority to delimit maritime boundaries, including the continental shelf beyond 200 nm, while respecting the technical expertise and recommendations of the Commission on the Limits of the Continental Shelf.
Significance of Continental Shelf
The continental shelf is of immense economic significance due to its role in resource extraction, energy production, global communications, scientific research, and more, all of which contribute to national and global economies.
The continental shelf holds significant economic importance for several reasons:
Natural Resources Extraction: The continental shelf is rich in natural resources, including oil and gas reserves, minerals, and aggregates (such as sand and gravel). The exploitation of these resources is a major economic activity, contributing significantly to the revenue of coastal states. Access to these resources can enhance a country's energy security and economic independence.
Fishing Grounds: Many of the world's richest fishing areas are located on the continental shelf. The shallow waters provide ideal conditions for plankton and smaller fish, which in turn support larger commercial fish species. Fishing industries thrive here, supporting livelihoods and contributing to the food supply.
Renewable Energy: Areas of the continental shelf are being increasingly used for renewable energy projects, such as offshore wind farms. These projects contribute to a country's energy mix, reduce dependence on fossil fuels, and help meet climate change targets.
Submarine Cables and Pipelines: As stipulated in Article 79 of the United Nations Convention on the Law of the Sea (UNCLOS), the continental shelf is crucial for laying submarine cables and pipelines. These are vital for global communications, internet connectivity, and the transport of oil and gas resources.
Scientific Research: The continental shelf is a site for scientific exploration and research. Studies conducted here contribute to our understanding of marine ecosystems, geological processes, and climate change. This knowledge can inform sustainable management practices and technological innovations.
Tourism and Recreation: Some areas of the continental shelf are significant for tourism and recreational activities, such as scuba diving and snorkeling, which benefit local economies.
Payments and Contributions: Article 82 of UNCLOS mentions that coastal states exploiting the continental shelf beyond 200 nautical miles are required to make payments or contributions, which are then distributed among States Parties, emphasizing the role of the continental shelf in international economic equity.
References
International Law by Martin Dixon | Robert McCorquodale | Sarah Williams
International Law 9th editions by Malcolm N. Shaw
ICJ Judments - https://www.icj-cij.org/decisions
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