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The legal odyssey of the continental shelf.

Is it a Shelf? Is it a Slope? Is it Only a Legal Concept?

In 1945, President Truman issued a famous proclamation that, for the first time in history, claimed sovereign seafloor rights for a coastal State. The proclamation stated that having in mind the "...long range worldwide need for new sources of petroleum and other minerals...the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control." This dating step was a product of the technological developments and security considerations of World War II. The Proclamation was careful, however, to add that: "...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 thus affected."

The Truman Proclamation was referred to at the time as the boldest and most successful land-grab in the history of the Union. But what was the meaning of "contiguous to the coasts?" What exactly did "the subsoil and sea bed of the continental shelf beneath the high seas" consist of?

The continental shelf was defined in terms of how deep the water above it was, or whether people could get to it, but not what it itself was. Some years later there was an attempt to define the breadth of the continental shelf, in the 1958 Geneva Convention on the Continental Shelf. Article 1 stated that "the term 'continental shelf' is used as referring to...the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas...." The definition of the shelf was thus provided by its "adjacency" out to a depth of 200 meters, or by the test--presumably a flexible and ever-changing criterion--as to whether it was accessible for exploitation. It still didn't define the shelf or tell how far out the shelf actually went.

Then came the lawsuits. They arrived in the context of five important cases, four in the World Court and one in a State arbitration. All were in the context of delimitation, or of drawing boundaries between States. In the first, the North Sea Continental Shelf Cases of 1969, the Court defined the shelf in terms that went beyond previous treaty provisions. It seemed to hint that the geological or geomorphological characteristics of the seabed and subsoil could provide a test or criterion for defining the shelf and determining to whom it might "belong." It must be noted that this was the World Court's first big case since the debacle of the South West Africa Cases of 1966, as a result of which the Court had endured much criticism in the United Nations and seen its workload shrink to almost nothing. Yet when Denmark, the Netherlands, and West Germany came to the Court in 1969 for help in delimitation of their continental shelves, the Court had only an incomplete legal definition to work with, in spite of its desire to be helpful.

The result was a long decision that hinted at a wide variety of ways in which the continental shelf of a country could be defined, including geological criteria (itself not defined) that might indicate whether the shelf in an area was more properly "appurtenant" to one country or another, or more properly the "natural prolongation" of one coast or another. As a result, for a period of a dozen years, between 1969 and 1982, the conventional wisdom was that the definition of the continental shelf would to some extent borrow from the lexicon of geology. Indeed, in a case coming eight years later (the Channel Arbitration of 1977 between the UK and France) the court of arbitration disregarded a trough between the British and French Coasts, but only because it was neither deep nor sufficiently marked to serve as a boundary for delimiting the respective shelves, and not because a trough would have no place in boundary delimitation.

Five years after that decision, the world community came to an historic agreement (with the egregious exceptions of the US, the UK, and West Germany as nonsigners) on a new ocean regime. The 1982 United Nations Convention on the Law of the Sea adopted the substantial innovation of the Exclusive Economic Zone (EEZ) extending 200 nautical miles from nations' coasts, as well as detailed provisions governing the continental shelf. Article 76 defined the shelf both in terms of distance from the coastline and in terms of its scientific composition. The distance was to be "the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles," out to a total distance of 350 nautical miles from the territorial sea baselines, or 100 nautical miles from the 2,500-meter isobath. (Some difference from the paltry 200 meters of 1958!) The outer scientifically defined limits were set as "the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 percent of the shortest distance from such point to the foot of the continental slope" or "no more than 60 nautical miles from the foot of the continental slope" (the point of maximum change in the gradient at its base). The outcome was that the shelf was first defined in terms of distance pure and simple, as if one were to float a measuring tape on top of the water out 200 nautical miles from the coast, but extension beyond that limit depended on a new scientific definition.

However, at the very time that the 1982 Law of the Sea Treaty was being finalized, the Tunisia/Libya Continental Shelf Case was being argued before the International Court. In that decision the Court held (as the court of arbitration had done in the Channel Arbitration of 1977) that geological and similar features advanced by the parties as relevant to the issue of "whose shelf was whose" were insufficiently important to constitute boundary markers, but it went no further. It was not until 1984, in the Gulf of Maine Case, that a Chamber of the Court was faced with the fact that it was selecting a single maritime boundary--for both the new exclusive economic zone and the old and new continental shelf--and was therefore able to avoid geology inasmuch as it could have no relevance to the EEZ. Then in 1985 the Court, in its Libya/Malta decision, finally disposed of the geological foundations for the first 200 nautical miles of "continental shelf" by supporting the "distance principle" that had been so clearly expressed in the 1982 Convention.

The journey of the continental shelf, then, has been from that of a perceived scientific reality, to legal confusion, to a legal reality with no scientific basis coupled with a physical or scientific basis beyond the extent of that legal reality. The irony is that it is thanks to the 1982 Law of the Sea Convention's innovation of the exclusive economic zone that the first 200 nautical miles of the continental shelf has at last been given unequivocal legal expression.

Indeed, the Convention provisions articulate a more tolerant expression of sovereign rights than has been generally recognized. Why? Because countries such as Chile, fronting on the Pacific with virtually no "real" continental shelf but merely a huge drop-off into the deep ocean depths, are treated today as if they actually "had" a continental shelf, at least out to 200 nautical miles.

The world of the oceans is therefore now made up of continental shelves that are continental shelves and continental shelves that are not. The original shelf of the 1945 Truman Proclamation would still be recognized today, but if a State in 1958 did not possess a physical shelf that would have been recognized as such, that area of adjacent seafloor has been converted into a "legal continental shelf" by passage of time and the desire of nations not to discriminate against "geographically challenged" members of the world community.

Although the 1982 Convention has given States without significant continental shelves a uniform broad legal shelf of 200 nautical miles, it could not, by the nature of things, award landlocked States any such right, though landlocked States are given rights to fish in the exclusive economic zones of coastal States under certain conditions! Possession of a shelf still depends upon possession of a coast, although inroads on this concept have also been made by the most recent World Court case on the subject (1992), which awarded maritime rights in the Pacific to Honduras in spite of the fact that her coastline fronted on the waters of the Gulf of Fonseca and not on the Pacific Ocean proper. The Convention could thus reform some of the geographical inequities of the world, but not all of them.

Another paradox is that it is at the outer limit of the 200-nautical-mile "legal shelf" that the real continental shelf "kicks in" once again and, under the outer-shelf provisions of the 1982 Convention, can result in a State possessing an extended continental shelf that goes out all the way to 350 nautical miles or even further, such as the Russian sub-arctic continental shelf. What establishes this? It is a combination of technical examinations, of geology, and geomorphology. Forty years ago these elements were thought to be relevant to the nature and appurtenance of all the continental shelf. Today they are legally relevant only to its outer limits.

The continental shelves of all coastal States have been pushed far offshore, regardless of whether they exist in reality. Beyond 200 nautical miles, they may or may not continue, depending only on whether they exist in reality. The institution of the continental shelf has evolved from a physical fact to an intriguing blend of law and substance. Its evolution has been required not only by physical factors under the seas and the development of the law of the sea, but also by international political realities, and their attendant compromises, worked out--of course--on dry land.

Keith Highet is a Visiting Professor of International Law at the Fletcher School of Law and Diplomacy in Medford, Massachusetts.
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Title Annotation:concepts defining the continental shelf
Author:Highet, Keith
Date:Dec 22, 1992
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