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The Outer Limit of the Continental Shelf: A Rejoinder to Professor Louis Henkin

Published online by Cambridge University Press:  28 March 2017

Luke W. Finlay
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Extract

Professor Louis Henkin and the National Petroleum Council are well known for their disparate views regarding the present extent of national jurisdiction of the coastal states over their Continental Shelves under the 1958 Geneva Convention on the Continental Shelf and also regarding the desirability of amending that Convention.

Type
Research Article
Information
American Journal of International Law , Volume 64 , Issue 1 , January 1970 , pp. 42 - 61
Copyright
Copyright © American Society of International Law 1970

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References

2 When the “legal” continental shelf is intended, initial capital letters will be used; when the geological continental shelf is intended, lower-case letters will be used.

3 Hereafter cited as the Geneva Convention, or where the meaning is clear, simply as the Convention.

4 See Henkin, Law for the Sea's Mineral Resources (1967), Clearinghouse for Federal Scientific & Technical Information Publication PB 177 725, hereafter cited as Law for the Sea's Mineral Resources 94; see also National Petroleum Council Report on “Petroleum Resources under the Ocean Floor” (1969) (hereafter cited as NPC Report) 57.

5 Law for the Sea's Mineral Resources 21.

6 Ibid. 26.

7 Ibid. 94,95.

8 Ibid. 105. To give an idea of the mineral interests involved, officials of the U. S. Geological Survey have estimated the potential resources in place on the U. S. Continental Shelves between the 200- and 2,500-meter isobaths as being nearly the same as those in place between the outer limits of the territorial sea and the 200-meter isobath, which in turn have been estimated as ranging from 660 to 780 billion barrels of oil, and from 1,640 to 2,220 trillion cubic feet of natural gas. It is impossible to estimate at this time what proportion of the resources beyond the 200-meter isobath will be ultimately recoverable, but their prospective future importance to the United States is such that the Department of the Interior has gone on record as favoring, from the natural resources standpoint, the assertion of U. S. jurisdiction over the entire continental margin. See testimony of Under Secretary of the Interior Russell E. Train before the Special Study Committee on United Nations Suboceanic Lands Policy of the Senate Commerce Committee, Sept. 24, 1969.

9 Final Act, Inter-American Specialized Conference on Conservation of Natural Resources: The Continental Shelf and Marine Waters (Ciudad Trujillo, March 15-28, 1956) 13. The definition of the “continental terrace” is at 34. Future references will be to the Final Act, Ciudad Trujillo Conference.

10 “meters” in the Ciudad Trujillo Resolution.

11 NPC Report 57.

12 H. W. Menard and Stuart M. Smith, “Hypsometry of Ocean Basin Provinces,” 71 Journal of Geophysical Research 4308 (1966), hereafter cited as Menard and Smith. See also p. 4315, where the authors describe the continental rises and partially filled sedimentary basins as “more continental than oceanic,” being “generally formed by deposition of continental derivatives.” The correlation is not consistently high, however, and each case must be judged on its own merits. Note, in this regard, the statement in the NPC Report (at 57) that a coastal state claim to the median line of a semienclosed sea, to have merit, would have to be based on “conditions of appurtenance or proximity … such as to meet the test of adjacency set forth in Article 1 [of the Geneva Convention].”

13 NPC Report 57.

14 3 A.J.I.L. 504 et seq. (1969), hereafter cited as editorial comment.

15 National Petroleum Council Interim Report on “Petroleum Resources under the Ocean Floor,” issued July 9, 1968, hereafter cited as NPC Interim Report.

16 Editorial comment 506.

17 An excellent example of this can be found in the vigorous debates that led to the 1968 Joint Report of the Sections of Natural Resources Law, International and Comparative Law, and the Standing Committee on Peace and Law through United Nations of the American Bar Association on the Continental Shelf issue, and to the subsequent 1969 modifications in this report which introduced refinements of shading but did not change the ultimate conclusion of the Joint Report, which broadly supports that of the National Petroleum Council.

18 hoc. cit. 504.

19 1956 I.L.C. Yearbook (II) 296.

20 Law for the Sea's Mineral Resources 4. Throughout this paper, the National Council on Marine Resources and Engineering Development is referred to by its familiar name of Marine Sciences Council. Similarly, the Commission on Marine Science, Engineering and Resources is referred to as the Marine Sciences Commission.

21 Ibid. 22. As stated by the Colombian Delegate in the Fourth Committee at Geneva, which drafted the final text of the Convention: “The article provided a permanent solution for the problem of the definition of the continental shelf and for that of scientifically possible exploitation; safeguarded the States without a wide shelf, while in no way causing prejudice to those States that had such a shelf, because the latter would have unimpaired enjoyment of their shelf; guaranteed equality of rights to all coastal States, which would enjoy equal rights in the submarine area, since they would stem from the basic right of self-preservation and defence of States.” (Emphasis added.) (Official Records, U.N. Conference on the Law of the Sea, 1958, Vol. VI, Fourth Committee, A/CONF. 13/42 at 41.)

22 loc. cit. 504.

23 Both the Proclamation and the Press Release are reproduced in 13 Department of State Bulletin 484 et seq. (1945); the Proclamation alone will be found in 10 Fed. Reg. 12303; reprinted in 40 A.J.I.L. Supp. 45 (1946).

24 Law for the Sea's Mineral Resources 46. An accompanying footnote (note 118) refers to a characterization of the area between the 200-meter and 3,000-meter isobaths by the State Department Geographer, Dr. G. Etzel Pearcy, as “a narrow zone of transition.”

25 Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction, established pursuant to Res. 2340 (XXII) of the U.N. General Assembly.

26 Law for the Sea's Mineral Resources (1967).

27 Changing Law for the Changing Seas,” in Uses of the Seas 69 (Gullion, ed.), The American Assembly, 1968. The significance of having an adversary view available for consideration may be judged by comparing the results of the Thirty-Third American Assembly, which generally accepted Professor Henkin's position, with those of the New England Assembly on Uses of the Sea, which was held a year later and which took a much more restrained position. Compare Report of the Thirty-Third American Assembly, Uses of the Seas, May 2-5, 1968, at pp. 6-7 with the Final Report of the New England Assembly on Uses of the Seas, May 22-25, 1969, at p. 8.

28 Loc. cit. 506. Professor Henkin supports this criticism with a footnote reference which includes the statement, inter alia, that “In 1966, Mr. Arthur Dean, who had represented the United States at the Geneva Conference, wrote that “by its terms’ the convention ‘applies only to geological continental shelves.’ See The Law of the Sea 246 (L. M. Alexander, editor, 1967).” Had Professor Henkin turned two pages further into the same paper (at 248), he would have noted that, in bearing down on the specific point at issue, Ambassador Dean had gone on to say the exact contrary, as follows: “A second unresolved problem of the definition of ‘continental shelf’ contained in Article 1 of the Convention is the extent of its application to offshore areas that are not, geographically speaking, continental shelves at all, for example, the Persian Gulf. The International Law Commission, which prepared an initial draft of the Convention, clearly intended the definition to encompass many such areas and to go beyond the geological definition of continental shelves. The conference did not depart from the Commission's intent by its use of the term ‘continental shelf’ in preference to the alternative term ‘submarine areas,’ which was suggested by some persons but discarded.”

29 NPC Report 60.

30 Editorial comment 506-507.

31 Law for the Sea's Mineral Resources 94.

32 NPC Report 57.

33 See Marjorie M. Whiteman, “Conference on the Law of the Sea: Convention on the Continental Shelf,” 52 A.J.I.L. 629 at 633, notes 19 and 20 (1958).

34 Final Act, Ciudad Trujillo Conference 33-34.

35 Ibid. 34.

36 NPC Report 58.

37 loc. cit. 507, note 5.

38 4 Whiteman, Digest of International Law 837 (Pub. 7825, Department of State, 1965).

39 See McDougal and Burke, The Public Order of the Oceans at 680 et seq. (1962), hereafter cited as McDougal and Burke.

40 See Hearings before the Committee on Foreign Relations of the United States Senate on Conventions on the Law of the Sea (86th Cong., 2nd Sess., Jan. 20, 1960) 108-109.

41 Law for the Sea's Mineral Resources, note 200.

42 McDougal and Burke 683.

43 Ibid. 686.

44 F. V. Garcia-Amador, The Exploitation and Conservation of the Resources of the Sea 130 (2nd and enlarged edition, 1959).

45 See editorial comment 507.

46 See Law for the Sea's Mineral Resources 27, 46 and 51 and also note 72, in which Professor Henkin comments: “Whether this view of adjacency survived the addition of the exploitability clause is open to question.”

47 1956 I.L.C. Yearbook (I) 136. See also p. 138, where Dr. Garcfa-Amador reiterated his interest in the continental terrace just before the determinative vote on the language of the definition of the Continental Shelf.

48 loc. cit. 507, note 5.

49 1956 I.L.C. Yearbook (I) 136.

50 Ibid. 140-141. See, in particular, pars. 60-65, 69-71, 73-74.

51 ibid. 132.

52 Opinion of the Court, par. 19. North Sea Continental Shelf Cases, [1969] I.C.J. Rep. 3 at 22; 63 A.J.I.L. 591 at 602-603 (1969); 8 Int. Legal Materials 340 at 357 (1969).

53 Menard and Smith 4308. To similar effect is the statement of Dr. William T. Pecora, Director of the U. S. Geological Survey, to the Subcommittee on Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs on March 27, 1969: “The continental slope which is seaward from the shelf is part of the continental terrace and is composed of the same rocks. “Therefore, in any concept of the outer limit of the continental jurisdiction from a scientific and geological sense we would recommend to the Senate that there is a continuity seaward to the base of the continental slope as a minimum.” This statement is reported in a Committee Print of the Senate Committee on Interior and Insular Affairs (91st Cong., 1st Sess.) entitled “Selected Materials on the Outer Continental Shelf,” dated Sept. 3, 1969, at p. 42.

54 Loc. cit. 508.

55 This, for the reason that the Federal Republic of Germany is not a party to the Geneva Convention and the Court had determined at an earlier point in its opinion that, unlike Arts. 1 and 2 of the Convention, Art. 6 is conventional law only and is not declaratory of the customary international law by which the rights of the Federal Republic of Germany must be governed.

56 Marine Sciences Commission Report, “Our Nation and the Sea” 145 (1969).

57 Op. cit. 26-27.

58 Ibid. 46.

59 Ibid. 51.

60 Ibid. 46, note 118.

61 Ibid.

62 loc. cit. 507

63 NPC Report 22. Even allowing for the cases where there is a justifiable claim to a prolongation of the continental rise beyond the continental crust, this percentage will not be significantly changed, as the total of all the continental shelves, slopes, rises and partially filled sedimentary basins cover only 20.6% of the ocean floor. See Table 6, Menard and Smith at 4318. Some portion of this total would hardly meet the test of adjacency in the sense of appurtenance.

64 Law for the Sea's Mineral Resources 94.

65 Ibid. 17, note 43.

66 3 International Lawyer 17.

67 NPC Report 8.

68 Ibid. 56-57.

69 Though officially approved, the 1969 Joint Report was not yet available in published form as of the date of this writing.