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The Legal Status of Submarine Areas Beneath the High Seas.

Published online by Cambridge University Press:  20 April 2017

Richard Young
Richard Young*
Affiliation:
Harvard University Law School
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Extract

The increasing number of claims by various states to submarine areas beneath the high seas has recently raised anew the question of the status of such claims in international law. The importance of the problem, with its possible impact on traditional legal concepts, has attracted the attention of writers and of several bodies interested in the development of international law, including the International Law Commission of the United Nations. It is to be hoped that out of the present ferment will emerge some sound legal principles which will reconcile new needs with established patterns in such a manner as to win general assent. To this end it may be useful, now that there are some years of state practice and learned discussion to draw upon, to comment on various views that have been advanced.

Type
Research Article
Information
American Journal of International Law , Volume 45 , Issue 2 , April 1951 , pp. 225 - 239
Copyright
Copyright © American Society of International Law 1951

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References

1 Argentina (1946), Brazil (1950), Chile (1947), Costa Rica (1948), El Salvador (1950), Guatemala (1948), Honduras (1950), Mexico (1945), Nicaragua (1948), Panama (1946), Peru (1947), the United States (1945), Venezuela (1942); and the Bahamas (1948) , British Honduras (1950), Jamaica (1948), and Trinidad (1942). See Bichard Young, “The Continental Shelf in the Practice of American States,” to appear in Inter-American Juridical Yearbook, Vol. 3 (1950).

2 Petroleum Act of 1949, No. 387, approved June 18, 1949. Official Gazette, Vol. 45 (August, 1949), p. 3192

3 Pakistan, Decree of March 9, 1950, incorporating the continental shelf within the 100-fathom line in the national territory. Gazette, March 14, 1950. For Persian Gulf developments, see this JOURNAL, Vol. 43 (1949), pp. 530, 790; ibid., Supp., pp. 156, 185.

4 Law No. 44 of April 5, 1948.

5 “Paul Fischer, “ Htfjhedsretten over den Tcontinentale soTckel,” Jus Gentium, Vol. 1 (1949) , pp. 190-191; Georg Cohn, “Den Tcontinentale soTchel,” ibid., Vol. 2 (1950), pp. 21-31.

6 A comprehensive tabular summary of offshore claims appears in S. W. Boggs, “National Claims in Adjacent Seas,” Geographical Review, April, 1951, p. 185.

7 J. P. A. Frangois, Report on the High Seas, U.N. Doc. A/CN.4/17 (March 17, 1950), pp. 31-41; Bibliography on the Regime of the High Seas (prepared by the Secretariat), U.N. Doc. A/CN.4/26 (April 25, 1950), pp. 18-20; Memorandum on the Regime of the High Seas (prepared by the Secretariat), U.N. Doc. A/CN.4/32 (July 14, 1950), pp. 48-112.

8 Report of the International Law Commission, 2d Session (1950). General Assembly, 5th Sess., Official Records, Supp. No. 12 (Doc. A/1316), p. 22; also in this JOURNAL, Supp., Yol. 44 (1950), p. 148. Accounts of the Commission's discussions on submarine areas appear in the Summary Records, 66th, 67th, 68th, and 69th Meetings, U.N. Docs. A/CN.4/SR.66-69 (July 12-17, 1950).

9 This is the definition which was employed in the British-Venezuelan Treaty of Feb. 26, 1942, regarding the Submarine Areas of the Gulf of Paria. League of Nations Treaty Series, Vol. 205, p. 121.

10 In certain cases the existence of established rights, for example in a sedentary fishery, may circumscribe the measure of control exercisable by the state claiming the sea bed and subsoil of a given area. This would appear to be the case with the Persian Gulf pearl fisheries, where the traditional pearling rights enjoyed by all the peoples of the Gulf have been expressly recognized by the several governments claiming the sea bed and subsoil.

11 10 Fed. Beg. (1945), p. 12303; this JOURNAL, Supp., Vol. 40 (1946), p. 45.

12 As described above, the U.S. proclamation of 1945 spoke only of “ jurisdiction and control” over the “natural resources of the subsoil and sea bed,” without reference to sovereignty or title. Yet by 1948 the Federal Government, in suits against the States of Texas and Louisiana, was asking the U. S. Supreme Court to declare that the United States was the “owner in fee simple” of the submarine areas in the Gulf of Mexico there in controversy. The Court declined so to declare, preferring the formula “possessed of paramount rights in, and full dominion and power over, the lands” in question. U. S. v. Texas (1950), 339 U. S. 707, this JOURNAL, Vol. 44 (1950), p. 770; U. S. v. Louisiana (1950), 339 U. S. 699. Similarly, the British-Venezuelan Treaty of 1942 regarding the Gulf of Paria did not assert the sovereignty of the parties over the submarine areas of the Gulf; but even before the treaty entered into force (Sept. 22, 1942), a British Order in Council of Aug. 6, 1942, “annexed” to “His Majesty's dominions” the areas on the Trinidad side of the treaty line. Statutory Buies and Orders, 1942, Vol. 1, p. 919. Since 1942, in the cases of the Bahamas, Jamaica, and British Honduras, the British practice has been to “extend the boundaries” of each colony to include the contiguous continental shelf. This formula would clearly seem to amount to a claim of sovereignty over the submarine areas concerned. See this JOURNAL, Vol. 43 (1949), p. 790.

13 In addition to the United Nations documents cited in notes 7 and 8 supra, reference may be made inter alia to: P. B. Feith, “Bights to the Sea Bed and its Subsoil,” Report of the 43d Conference of the International Law Association (1948), pp. 168-206; International Law Association, Committee Beport and Beport of the French Branch to the 44th Conference (1950); Sir Cecil Hurst, “The Continental Shelf,” International Law Quarterly, Vol. 2 (1948), pp. 640-642; J. L. de Azc&rraga y Bustamante, “Los derechos sobre la plataforma continental,” Revista Espailola de Derecho Internacional, Vol. 2 (1949), pp. 47-99; Giovanni Bernard!, “I diritti sul fondo e sul sottofondo dell'alto mare,” II Viritto Marittimo (3d ser.), Vol. 51 (1949), pp. 9-20.

14 Gilbert Gidel, Le droit international public de la mer, Vol. 1, pp. 214 ff.

15 For example, the proposal of Mr. Shuhsi Hsu at the 66th meeting of the International Law Commission (Geneva, July 12,1950), TT.N. Doc. A/CN.4/SB.66, p. 28; and cf. Bernardi, article cited supra, note 13.

16 Such a view was advanced by Mr. P. E. Feith before the International Law Association at Brussels in 1948. Report of the 43d Conference, p. 174.

17 Although this proposition has been in the past the subject of much debate, it would seem today to admit of no serious doubt.

18 As was said by a tribunal of the Permanent Court of Arbitration in the Grisbadarna Case. Scott, Hague Court Reports, p. 127. In the words of Secretary of State Seward in 1863, a sovereign's right to jurisdiction over the marginal sea “is derived not from his own decree but from the law of nations, and exists even though he may never have proclaimed or asserted it by any decree or declaration whatsoever.” Moore, Digest of International Law, Vol. 1, p. 710.

19 The Anna (1805), 5 C. Sob. 373, at 385.

20 Recent scientific discussions of the continental shelf may be found in F. P. Shepard, Submarine Geology (1948), and Jacques Bourcart, Geographie du fond des mers (1949); and see S. W. Boggs, “National Claims in Adjacent Seas,” Geographical Review, Vol. 41 (April, 1951), p. 185.

21 Reference may perhaps again be made to the analogy of territorial waters, where diversity of practice as to the width of the marginal belt has not affected the universal recognition of the existence of the belt.

22 In the report of the committee on “Rights to the Sea Bed and Subsoil” to the 1950 Conference of the International Law Association

23 In the report to the 1950 Conference of the International Law Association made by the French Branch of the Association.

24 See the Icelandic law of 1948, cited supra, note 4, and the claims to the “continental shelf” around Jamaica and the Bahamas advanced by British Orders in Council of Nov. 26, 1948, cited supra, note 12. Many Latin-American claims have distinguished between the two types of shelf. The Philippine Petroleum Act of 1949, cited supra, note 2, speaks of “the continental shelf, or its analogue in an archipelago.”

25 See citations supra, note 3. The Iranian proposal, it may be noted, was expressly applicable to the Persian Gulf and the Sea of Oman, in the latter of which there is a continental shelf. It did not refer to the Caspian.

26 Cited supra, note 9. The line in this instance, where it did not coincide with the limits of territorial waters, was defined arbitrarily in terms of latitude and longitude.

27 The leading technical discussion of these problems is by S. W. Boggs, International Boundaries (1940), pp. 176-192; see also F. A. Vallat, “The Continental Shelf,” British Tear Book of International Law, Vol. 23 (1946), pp. 333-338.

28 See S. W. Boggs, “Delimitation of Seaward Areas under National Jurisdiction,” in this Journal, p. 240.

29 The states which appear to have made claims of some kind to water areas in connection with their claims to submarine areas are Argentina, Chile, Costa Bica, El Salvador, Honduras, Peru, and possibly Mexico. See Bichard Young, “Becent Developments with Bespect to the Continental Shelf,” this JOURNAL, Vol. 42 (1948), pp. 849-857, and the article cited supra, note 1; also C. B. Selak, Jr., “Becent Developments in High Seas Fisheries Jurisdiction,” this JOURNAL, Vol. 44 (1950), pp. 670-681.

30 This point would seem to be supported by the protests addressed by the United Kingdom and the United States to several Latin-American governments, including Chile and Peru, regarding those governments' offshore claims. The protests took exception primarily not to the claims made with respect to submarine areas, but to the rights asserted over adjacent seas. For text of U. S. note to Chile, see Selak, this JOURNAL, Vol. 44 (1950),p. 674.

31 The Icelandic law (cited supra, note 4) provides for regulation of fisheries within the limits of the continental shelf “only to the extent compatible with agreements with other countries to which Iceland is or may become a party.” Thus limited, the Icelandic law seems to go little further than the U. S. proclamation of Sept. 28, 1945, on fishery conservation zones (10 Fed. Reg. (1945), p. 12304).