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The Delimitation of the Outer Continental Shelf Between Neighboring States

Published online by Cambridge University Press:  27 February 2017

David A. Colson
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American Journal of International Law , Volume 97 , Issue 1 , January 2003 , pp. 91 - 107
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Copyright © American Society of International Law 2003

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References

1 Continental Shelf (Libya/Malta), 1985 ICJ Rep. 13 (June 3) [hereinafter Libya-Malta]; see Scovazzi, Tullio & Francalanci, Giampiero, Libya-Malta, Rep. No. 8-8, in 1 International Maritime Boundaries 1649 (Charney, Jonathan I. & Alexander, Lewis M. eds., 1993)Google Scholar [hereinafter Charney & Alexander].

2 Highet, Keith, Whatever Became of Natural Prolongation? in Rights to Oceanic Resources 87 (Dallmeyer, Dorinda G. & DeVorsey, Louis Jr., eds., 1989)Google Scholar; see also Keith Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries, in 1 Charney & Alexander, supra note 1, at 163.

3 Continental Shelf (Tunisia/Libya), 1982 ICJ Rep. 18 (Feb. 24) [hereinafter Tunisia-Libya]; see Feldman, Mark B., The Tunisia-Libya Continental Shelf Case: Geographic Justice or Judicial Compromise? 77 AJIL 219 (1983)CrossRefGoogle Scholar; Herman, Lawrence, The Court Giveth and the Court Taketh Away: An Analysis of the Tunisia-Libya Continental Shelf Case, 33 Int’l & Comp. L. Q. 825 (1984)CrossRefGoogle Scholar; Hodgson, Robert D., The Tunisia-Libya Continental Shelf Case, 16 Case W. Res. J. Int’l L. 1 (1984)Google Scholar; Tullio Scovazzi & Giampiero Francalanci, Tunisia-Libya, Rep. No. 8-9, in 2 Charney & Alexander, supra note 1, at 1663.

4 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ REP. 32 (Feb. 20) [hereinafter North Sea].

5 Guillaume, Gilbert, Speech to the Sixth Committee of the General Assembly of the United Nations (Oct. 31, 2001)Google Scholar, available at <http://www.icj-cij.org/icjwww/ipresscom/iprstats.htm>.

6 Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Merits, 40 ILM 847 (2001) [hereinafter Qatar-Bahrain]; see Colson, David A., Bahrain-Qatar, Rep. No. 7-13, in 4 International Maritime Boundaries 2841 (Charney, Jonathan I. & Smith, Robert W. eds., 2002)Google Scholar [hereinafter Charney & Smith]; see also Plant, Glen, Case Report: Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, in 96 AJIL 198 (2002)CrossRefGoogle Scholar.

7 A summary of the Russian submission is available on the Web site of the Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, at <http://www.un.org/depts/los/index.htm> [hereinafter DOALOS Web site].

8 United Nations Convention on the Law of the Sea, opened for signature Dec. 10,1982,1833 UNTS 397, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983) [hereinafter 1982 Convention].

9 Id., Article 76 reads:

  • 1.

    1. The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

  • 2.

    2. The continental shelf of a coastal State shall not extend beyond die limits provided for in paragraphs 4 to 6.

  • 3.

    3. The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

  • 4.

    4.

    • (a)

      (a) For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either:

      • (i)

        (i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or

      • (ii)

        (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope.

    • (b)

      (b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base.

  • 5.

    5. The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed, drawn in accordance with paragraph 4(a) (i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.

  • 6.

    6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.

  • 7.

    7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by co-ordinates of latitude and longitude.

  • 8.

    8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

  • 9.

    9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanendy describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.

  • 10.

    10. The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.

10 The United Nations Office of Legal Affairs, Division for Ocean Affairs and the Law of the Sea, has published a booklet that will assist anyone interested in understanding the complexities of Article 76. United Nations, The Law of the Sea, Definition of the Continental Shelf: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, UN Sales No. E. 93.V. 16 (1993) [hereinafter UN Handbook] . Another useful explanation of Article 76 is Smith, Robert W. & Taft, George, Legal Aspects of the Continental Shelf, in Continental Shelf Limits: The Scientific and Legal Interface 17 (Cook, Peter J. & Carleton, Chris M. eds., 2000)Google Scholar [hereinafter Continental Shelf Limits] . Furthermore, the DOALOS Web site, supra note 7, carries a selection dedicated to the Commission on the Limits of the Continental Shelf, which includes further information that will assist in one’s appreciation of the nuances and complexities of this article. Perhaps one of the more succinct summaries of Article 76 is found in the explanation offered by the secretary of state in his letter of transmittal of September 23, 1994, of the 1982 Convention to the president recommending submission of the Convention to the Senate for advice and consent to ratification. S. Treaty Doc. No. 103-39, at 54-57 (1994).

11 It will assist in one’s comprehension of Article 76 to understand that it is intended to be interpreted in favor of the claimant coastal state. “Where the cited physical conditions are met, article 76 seeks to maximize the area of a State’s jurisdiction over the continental shelf where that shelf extends beyond 200 M from the State’s baseline from which its territorial sea is measured.” Smith & Taft, supra note 10, at 17.

12 The coastal state must establish those limits “on the basis of” those recommendations if it wishes the international community to respect and honor its limits. Undoubtedly, the “on the basis” standard is deliberately vague. It remains to be seen how coastal states will react to “recommendations” by the commission; it also remains to be seen whether the international community at large will become sufficiently aware of the commission’s recommendations to evaluate whether a coastal state has indeed established its limits “on the basis of” such recommendations.

13 See Article 45(1) of the Rules of Procedure of the Commission on the Limits of the Continental Shelf, UN Doc. CLCS/3/Rev.3 & Corr.1 (2001), and Annex I to those rules, which may be found on the DOALOS Web site, supra note 7. See also Chris M. Carleton, Delimitation Issues, in Continental Shelf Limits, supra note 10, at 312. The commission’s procedures also incorporate the important understanding that in the event of a dispute, the ten-year requirement of Article 4 of Annex II to the 1982 Convention is tolled.

14 Prescott, Victor, National Rights to Hydrocarbon Resources of the Continental Margin Beyond 200 Nautical Miles, in Boundaries and Energy: Problems and Prospects 51 (Blake, G. H., Pratt, M. A., & Schofield, C. H. eds., 1998)Google Scholar [hereinafter Prescott, National Rights]; see also Victor Prescott, Resources of the Continental Margin and International Law, in Continental Shelf Limits, supra note 10, at 64.

15 During the Third UN Conference on the Law of the Sea, the Secretariat, with assistance from experts, prepared a report that identified thirty-three such countries. It was not intended to be definitive. UN Doc. A/CONF.62/C.2/L.98/Add.1 (1978).

16 These agreements are available online at the treaty location of the DOALOS Web site, <http://www.un.org/depts/los/Legislationandtreaties> [hereinafter DOALOS Treaties].

17 Agreement on Maritime Delimitation, Jan. 4, 1982, Austl.-Fr., 1329 UNTS 107; see Victor Prescott, Australia (Heard/McDonald Islands)–France (Kerguelen Irfands), Rep. No. 6-1, in 2 Charney & Alexander, supra note 1, at 1185.

18 The Kerguelen-Gaussberg Ridge or Plateau extends well south of McDonald and Heard Islands into the area south of 60° south latitude covered by the Antarctic Treaty. Prescott, National Rights, supra note 14, at 77.

19 Agreement on Maritime Delimitation, supra note 17, Art. 3(2).

20 Agreement on Maritime Delimitation, supra note 17; see Choon-ho Park, Australia–France (New Caledonia), Rep. No. 5-1, in 1 Charney & Alexander, supra note 1, at 905.

21 Agreement Concerning the Delimitation of Areas of the Continental Shelf Between the Two Countries, Nov. 7,1988, Ir.-UK; see David H. Anderson, Ireland–United Kingdom, Rep. No. 9-5, in 2 Charney & Alexander, supra note 1, at 1767.

22 Treaty on the Delimitation of Marine and Submarine Areas, Apr. 18, 1990, Trin. & Tobago—Venez.; see Kaldone G. Nweihed, Trinidad & Tobago–Venezuela, Rep. No. 2-13 (3), in 1 Charney & Alexander, supra note 1, at 675.

23 Agreement on the Maritime Boundary, June 1, 1990, U.S.-USSR, S. TREATY Doc. No. 101-22 (1990); see Elizabeth G. Verville, United States–Soviet Union, Rep. No. 1-6, in 1 Charney & Alexander, supra note 1, at 447.

24 See the reference to the Chukchi Plateau in S. Treaty Doc. No. 103-39, note 10 supra, at 56.

25 On the “doughnut hole,” see note 35 infra.

26 Treaty on the Delimitation of the Continental Shelf in the Western Gulf of Mexico Beyond 200 Nautical Miles, June 9, 2000, U.S.-Mex., S. Treaty Doc. No. 106-39 (2000); see Robert W. Smith, Mexico-United States, Rep. No. 1- 5(2), in Charney & Smith, supra note 6, at 2619.

27 There is another area in the Gulf of Mexico to the east that is beyond the 200-nautical-mile zones of the United States, Mexico, and Cuba.

28 Treaty on Maritime Boundaries, May 4, 1978, U.S.-Mex., available at DOALOS Treaties, supra note 16; see Robert W. Smith & David A. Colson, Mexico–United States, Rep. No.1-5, in 1 Charney & Alexander, supra note 1, at 427.

29 Smith, supra note 26, at 2624.

30 Of these boundaries only the United States-Mexico boundary in the western “doughnut hole” is the result of a negotiation that was independent of the negotiation about the associated exclusive economic zone.

31 The only tribunal to address legal questions pertaining to the delimitation of the outer continental shelf to date was established under Canadian law to address interprovincial issues. Arbitration Concerning Portions of the Limits of Their Offshore Areas as Defined in the Canada–Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada-Newfoundland Atlantic Accord Implementation Act (Nfld./Labrador & N.S.), Second Phase (Mar. 26,2002), available at <http.www.boundary-dispute.ca/>. The tribunal established the boundary in the outer continental shelf area as an equidistant line between Nova Scotia and Newfoundland, giving Sable Island no effect.

32 UN Doc. CLCS/34 (July 1, 2002), available at DOALOS Web site, note 7 supra.

33 See the definition of Svalbard (Spitsbergen) in the Treaty Concerning the Archipelago of Spitsbergen, Feb. 9, 1920, Art. 1, 43 Stat. 1892, 2 LNTS 7.

34 Article 1 of the 1990 Russia-United States boundary treaty, supra note 23, indicates that the parties are agreed that the boundary extends “into the Arctic Ocean as far as permitted under international law.” See Feldman, Mark B. & Colson, David, The Maritime Boundaries of the United States, 75 AJIL 729 (1981)CrossRefGoogle Scholar.

35 The center of the Bering Sea, which is beyond 200 nautical miles from the surrounding United States and Russian coasts, is circular in shape; hence “doughnut hole.” The center of the Sea of Okhotsk is beyond 200 nautical miles from the surrounding Russian coasts and is shaped like a peanut; hence “peanut hole.”

36 See generally Colson, David A., Political and Boundary Issues Affecting Arctic Energy Resources, in The Developing Order of the Oceans 513 (Krueger, Robert B. & Riesenfeld, Stefan A. eds., 1985)Google Scholar; Oude Elferink, Alex G., The Law and Politics of the Maritime Boundary Delimitations of the Russian Federation, Part 2, 12 Int’l J. Marine & Coastal L. 5 (1997)CrossRefGoogle Scholar.

37 See note 34 supra. In respect of the U.S.-Canada boundary in the Arctic, the United States continues to maintain that the boundary should be the equidistant line, while Canada claims the meridian of 141° west longitude as the maritime boundary.

38 The various communications are published on the DOALOS Web site, note 7 supra. For the U.S. reaction, see also Murphy, Sean D., Contemporary Practice of the United States, 96 AJIL 969 (2002)Google Scholar.

39 The United States, of course, is disadvantaged in this process because it is not a state party to the 1982 Convention, and thus not a member of the commission. However, it was still possible for the United States to assert its interests through normal bilateral diplomatic channels and directly by letter to the commission.

40 Seven states claim territorial sovereignty in Antarctica: Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom. There are now more than thirty-five other states party to the Antarctic Treaty that do not claim or recognize claims to territorial sovereignty in Antarctica. Antarctic Treaty, Dec. 1,1959,12 UST 794, 402 UNTS 71.

41 Article 7 of the Protocol on Environmental Protection provides: “Any activity relating to mineral resources, other than scientific research, shall be prohibited.” Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, S. Treaty Doc. No. 102-22 (1992), 30 ILM 1455 (1991).

42 Convention on the Continental Shelf, Apr. 29, 1958, Art. 6, 15 UST 471, 499 UNTS 311.

43 North Sea, 1969 ICJ Rep. 32, para. 101.

44 In this period, the 1977 judgment of the arbitration tribunal in the United Kingdom–France case served to highlight the differences in approaches between customary international law and Article 6 of the 1958 Continental Shelf Convention. Case Concerning the Delimitation of the Continental Shelf (UK/Fr.), 18 R.I.A.A. 3 (1977 & 1978); see David H. Anderson, France–United Kingdom, Rep. No. 9-3, in 2 Charney & Alexander, supra note 1, at 1735; Bowett, D. W., The Arbitration Between the United Kingdom and France Concerning the Continental Shelf Boundary in the English Channel and South Western Approaches, 1978 Brit. Y.B. Int’l L. 1 Google Scholar; Colson, David A., The United Kingdom–France Continental Shelf Arbitration, 73 AJIL 60 (1979)Google Scholar.

45 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 ICJ Rep. 246 (Oct. 12) [hereinafter Gulf of Maine]; see David A. Colson, Canada–United States (Gulf of Maine), Rep. No. 1-3, in 1 Charney & Alexander, supra note 1, at 401; Legault, L. H. & Hankey, Blair, From Sea to Seabed: The Single Maritime Boundary in the Gulf of Maine Case, 79 AJIL 961 (1985)CrossRefGoogle Scholar; Robinson, Davis R., Colson, David A., & Rashkow, Bruce C., Some Perspectives on Adjudicating Before the World Court: The Gulf of Maine Case, 79 AJIL 578 (1985)CrossRefGoogle Scholar.

46 Guillaume, supra note 5.

47 Libya-Malta, 1985 ICJ REP. 13, para. 39.

48 Id.

49 Id., para. 40 (emphasis added).

50 Guillaume, supra note 5.

51 See generally Weil, Prosper, The Law of Maritime Delimitation—Reflections (1989)Google Scholar; Charney, Jonathan I., Progress in International Maritime Boundary Delimitation Law, 88 AJIL 227 (1994)CrossRefGoogle Scholar.

52 Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den. v. Nor.), 1993 ICJ Rep. 38 (June 14) [hereinafter Jan Mayen]; see David H. Anderson, Denmark (Greenland)-Norway (Jan Mayen), Rep. No. 9-19, in 3 Charney & Alexander, supra note 1, at 2507.

53 Qatar-Bahrain, 40 ILM 847 (2001).

54 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig; Eq. Guinea intervening) (Int’l Ct. Justice Oct. 10,2002).

55 Delimitation of the Continental Shelf Between Guinea and Guinea-Bissau (Guinea/Guinea-Bissau), 25 ILM 251 (1986) (Feb. 14,1985); see Andronico O. Adede, Guinea–Guinea-Bissau, Rep. No. 4-3, m l Charney & Alexander, supra note 1, at 857.

56 Delimitation of Maritime Areas Between Canada and the French Republic (St. Pierre and Miquelon) (Can./Fr.), 31 ILM 1145 (1992) (June 10,1992); see Jan Schneider, Canada–France (St. Pierre and Miquelon), Rep. No. 1-2, addendum 2, in 3 Charney & Alexander, supra note 1, at 2141.

57 Second Stage of the Proceedings (Maritime Delimitation) (Eri./Yemen),40ILM983 (2001) (Dec. 17,1999) [hereinafter Eritrea-Yemen]; see David A. Colson, Eritrea-Yemen, Rep. No. 6-14, in Charney & Smith, supra note 6, at 2729.

58 Qatar-Bahrain, 40 ILM 892, para. 231.

59 Guillaume, supra note 5. Judge Guillame also states: “In all cases, the Court, as States also do, must first determine provisionally the equidistance line. It must then ask itself whether there are special or relevant circumstances requiring this line to be adjusted with a view to achieving equitable results.” Id.

60 For instance, the methodology employed by the Chamber in the Gulf of Maine case, 1984 ICJ Rep. 246, is both obscure and complex and presented as if it should be obvious. Yet the line it creates is not much different from a simplified equidistant line developed from coastal fronts, with a small adjustment to its final segment to reflect the difference in the lengths of the relevant United States and Canadian coasts.

61 Jan Mayen, 1993 ICJ Rep. 38,62, para. 55. The Court in this case found a disparity in length of relevant coasts to constitute a special circumstance under Article 6.

62 The principle of nonencroachment concerns how close the boundary line lies to each neighboring coast, and whether, in the circumstances of the case, that seems to be an equitable result. It has both a positive and a negative aspect. Each state is entitled to the projection of its coastal front, but the boundary must not “cut off” the projection of the neighbor’s coastal front. Accordingly, the principle of nonencroachment works hand in hand with special circumstances. It is really the nonencroachment perspective that comes into play in deciding that an equidistant line will cut off the extension of the coastal front of the neighboring country. Identifying the special circumstance that causes the equidistant line to do that, and adjusting for it, leads to a satisfactory sharing of the “cutoff” of projections of neighboring coastal fronts and thereby satisfies the principle of nonencroachment.

63 Substantial differences in the lengths of relevant coasts may be a relevant factor in a delimitation, as was true in Libya-Malta and Jan Mayen.

64 As Keith Highet said: “The Court was submerged beneath vast quantities of written material on tectonic plate theory, continental drift, rifting, uplifting, subsidence, horsts, and grabens.” Highet, Whatever Became of Natural Prolongation ? supra note 2, at 88.

65 Hedberg, Hollis D., Ocean Floor Boundaries, 204 Science, Apr. 13, 1979, at 135 CrossRefGoogle ScholarPubMed.

66 North Sea, 1969 ICJ Rep. 32, paras. 4, 45; see David H. Anderson, Norway–United Kingdom, Rep. No. 9-15, in 2 Charney & Alexander, supra note 1, at 1879.

67 See David A. Colson, The Legal Regime of Maritime Boundary Agreements, in 1 Charney & Alexander, supra note 1, at 41, 67.

68 Gulf of Maine, 1984 ICJ Rep. 246.

69 The boundary so established extends out to an endpoint that is 200 nautical miles from the United States coast but only about 176 nautical miles from Canada. Without doubt, there is outer continental shelf to be claimed by Canada and the United States further seaward of this endpoint for a considerable distance. While the outer continental shelf off this portion of the East Coast of North America may not be so broad as it is further to the north, the United States and Canada recognized that the continental shelf extends beyond the 200-nautical-mile limit in this boundary area and provided for its delimitation through negotiations or by binding dispute settlement. See Article VII of the Special Agreement of March 29,1979, submitting the Gulf of Maine area maritime boundary dispute to a chamber of the International Court of Justice, Gulf of Maine, 1984 ICJ Rep. at 255, para. 5.

70 Eritrea-Yemen, 40 ILM 983 (2001). This matter is addressed in paragraphs 160-62 of the award in that case. The boundary cuts off the territorial sea west of Jabal Zuqar at about 10 nautical miles from the island, whereas the opposing Eritrean mainland is about 22 nautical miles west of the boundary.

71 The Venezuela-Trinidad & Tobago boundary is another illustration of this point. For the Treaty and commentary, see note 22 supra.

72 At this date, more than twenty years after the United States and Canada agreed by treaty to submit the case to a chamber of the Court, it may be useful to recall that the pertinent treaty provisions would allow either country to reinstitute proceedings before a chamber of the Court to address the boundary of the outer continental shelf. See note 69 supra.

73 Royal Society, A Guide to the Provisions of the 1982 United Nations Convention on the Law of the Sea Relating to Marine Scientific Research 25 (n.d.), reprinted in International Hydrographic Organization, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, at 110 (2d ed. 1990); see also UN Handbook, supra note 10, fig. 8, at 24; Continental Shelf Limits, supra note 10, fig. 3.1, at 22.