Hostname: page-component-586b7cd67f-tf8b9 Total loading time: 0 Render date: 2024-11-24T13:04:34.688Z Has data issue: false hasContentIssue false
  • English
  • Français

The International Court of Justice's “natural prolongation” and the continental shelf problem of islands*

Published online by Cambridge University Press:  07 July 2009

L.F.E. Goldie
Get access

Extract

Attempts at the United Nations Conference on the Law of the Sea at Geneva in 1958 to define the legal characteristics of islands for the purpose of delimiting continental shelf boundaries proved abortive, despite the presentation of several proposals and draft amendments to the relevant provision of the International Law Commission's 1956 Draft Articles Concerning the Law of the Sea. One difficulty the Fourth Committee faced arose from its formalistic approach. It seemed reluctant to look behind the word “islands”, and appraise different categories of islands differently. A prime example of the confusion this nominalism caused is to be found in the report of Mr. Gihl's intervention in this regard. He reasoned about offshore and coastal islands on a single continental shelf with the mainland coast in terms of islands “having a continental shelf of their own”.

Type
Section A: Articles
Information
Netherlands Yearbook of International Law , Volume 4 , December 1973 , pp. 237 - 261
Copyright
Copyright © T.M.C. Asser Press 1973

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See, e.g., the proposal by Italy, U.N. Doc. A/CONF.13/C.4/L.25/Rev. 1, 6 United Nations Conference on the Law of the Sea. Official Records, Fourth Committee (Continental Shelf) p. 133, U.N.Doc. A/CONF.13/42 (1958) [hereinafter cited as “A/CONF.13/42”]; and proposal by Iran, U.N. Doc. A/CONF.13/C.4/L.60, id. at p. 142. For a discussion of these proposals, and the canvassing of some tentative thoughts about the complicating factors islands create in the delimitation of continental shelf areas, especially in cases where a number of States abutting onto a common shelf area are either adjacent to or opposite one another see, id. pp. 91–98. Note should also be taken of Mr. Gihl (Sweden) at p. 94 where he pointed out that to leave islands and islets out of account would not only create political difficulties which he could not support, but also interpretation problems, especially in the light of the International Court of Justice's decision in the Fisheries case, I.C.J. Rep. 1951, p. 116, which he characterized as follows:

[T]he Norwegian coast was constituted by the exterior line of the “skjaergaard” – i.e., of the coastal archipelago. That declaration, in the opinion of the Swedish delegation, represented a general principle applicable to coastal archipelagos, bays, etc.…

2. Art. 72. After a comprehensive review and the addition of a number of substantial amendments, this became Art. 6 of the Convention on the Continental Shelf, done 29 April, 1958, 499 U.N.T.S. p. 311, entered into force 10 June 1964, (1964) 1 U.S.T. 471, T.I.A.S. No. 5578 [hereinafter cited as the “Continental Shelf Convention”], reprinted, 52 American Journal of International law (1958) p. 858.Google Scholar

3. I.L.C. Yearbook 1956 vol. II p. 256, 264. See also, id. p. 300.

4. See A/CONF.13/42 at p. 94.

5. A notable exception is Ely, , “Seabed Boundaries Between Coastal States: The Effect to be Given Islets as ‘Special Circumstances’”, 6 International Lawyer (1972) p. 219 [hereinafter cited as “Ely”).Google Scholar

6. See, for a critical outline and discussion of this proposed basis of maritime claims, Goldie, , “International Law of the Sea – A Review of States' Offshore Claims and Competences”, 24 Javal War College Review (Sequence # 234, 02. 1972) pp. 43, 51.Google Scholar

7. I.C.J. Rep. 1951 p. 116.

8. I.C.J. Rep. 1953 p. 47.

9. I.C.J. Rep. 1969 p. 3.

10. I.C.J. Rep. 1951 p. 116.

11. Thus the Court said:

Another fundamental consideration, of particular importance in this case, is the more or less close relationship existing between certain sea areas and the land formations which divide or surround them. The real question raised in the choice of base-lines is in effect whether certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters. This idea, which is at the basis of the determination of the rules, relating to bays, should be liberally applied in the case of a coast, the geographical configuration of which is as unusual as that of Norway. I.C.J. Rep. 1951 p. 133.

See also I.C.J. Rep. 1951 p. 142 where the Court stated:

The Court considers that, although it is not always clear to what specific areas they apply, the historical data produced in support of this contention by the Norwegian Government lend some weight to the idea of the survival of traditional rights reserved to the inhabitants of the Kingdom over fishing grounds included in the 1935 delimitation, particularly in the case of Lopphavet. Such rights, founded on the vital needs of the population and attested by very ancient and peaceful usage, may legitimately be taken into account in drawing a line which, moreover, appears to the Court to have been kept within the bounds of what is moderate and reasonable.

12. The Court also stressed that:

The general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact. For a period of more than sixty years the United Kingdom Government itself in no way contested it. One cannot indeed consider as raising objections the discussions to which the Lord Roberts incident gave rise in 1911, for the controversy which arose in this connection related to two questions, that of the four-mile limit, and that of Norwegian sovereignty over the Varanger-fjord, both of which were unconnected with the position of base-lines. It would appear that it was only in its Memorandum of 27 July 1933 that the United Kingdom made a formal and definite protest on this point. I.C.J. Rep. 1951 p. 138.

And added:

The notoriety of the facts, the general toleration of the international community, Great Britain's position in the North Sea, her own interests in the question, and her prolonged abstention would in any case warrant Norway's enforcement of her system against the United Kingdom. I.C.J. Rep. 1951 p. 139.

13. For example it said:

The Court is thus led to conclude that the method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; that even before the dispute arose, this method had been consolidated by a constant and sufficiently long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law. I.C.J. Rep. 1951 p. 139.

See also e.g., I.C.J. Rep. 1951 p. 135, (where the Court referred to “what the Norwegian Government describes as its traditional system of delimitation”) and at pp. 136, 138, 139.

And see De, Visscher, Theory and Reality in Public International Law, rev. ed., transl. Corbett, P. (Princeton NJ.: Princeton University Press, 1968), pp. 158, 160, 220 n. 94.Google Scholar

14. McDougal, & Burke, , Hie Public Order of the Oceans (New Haven-London: Yale University Press, 1962) p. 387.Google Scholar

15. I.C.J. Rep. 1951 p. 140.

16. I.C.J. Rep. 1951 p. 127.

17. I.C.J. Rep. 1951 p. 127.

18. I.C.J. Rep. 1953 p. 47.

19. The Court's quotation from the United Kingdom Government's Submission, Minquiers and Ecrehos case, I.C.J. Rep. 1953 p. 52.

20. I.C.J. Rep. 1953 p. 53.

21. Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic Regarding Rights of Fishery in Areas of the Ecrehos and Minquiers, done 30 January 1951, (Great-Britain) Treaty Series 1952 No. 4 (Cmd. 8444) [hereinafter cited as “Fisheries in the Ecrehos and Minquiers Agreement”].

22. Supra n. 9.

23. See I.C.J. Rep. 1969 p. 47 where the Court said that the parties were “under an obligation so to conduct themselves that the negotiations are meaningful….”. For a defense of the thesis that the Court, by prescribing the parties' duty in this way, was laying upon them an analogous duty to that in domestic United States law requiring labor and management negotiators to bargain together in good faith, see Goldie, , “The North Sea Continental Shelf Cases – A Ray of Hope for the International Court?” 16 New York Law Forum (1970) pp. 325, 359–65Google Scholar [hereinafter cited as “Goldie, North Sea Cases”]. See now Agreement Between the Federal Republic of Germany and Denmark, done 28 January 1971, 10 International Legal Materials (1971) p. 603Google Scholar; Agreement Between the Federal Republic of Germany and the Netherlands, done 28 January 1971, 10 International Legal Materials (1971) p. 607Google Scholar, Trb. 1971 No. 53; Protocol Common to Both Agreements, done 28 January 1971, 10 International Legal Materials (1971) p. 600Google Scholar. For a review of these agreements see Goldie, , “The North Sea Continental Shelf Cases: Á Postscript”, 18 New York Law Forum (1972) p. 411.Google Scholar

24. I.C.J. Rep. 1969 p. 22. For the use of the concept of “natural prolongation” as a central theme of the Court's judgment, see I.C.J. Rep. 1969 pp. 3, 29, 30, 31, 36, 37, 39, 40, 43, 44, 47, 51.

25. I.C.J. Rep. 1969 p. 39.

26. I.C.J. Rep. 1969 p. 22.

27. Id.

28. I.C.J. Rep. 1969 p. 39. The list of emerging customary law principles which the Court set forth at p. 39 is not reproduced here because the Court, by using the qualifier “among” would not appear to regard its list as exhaustive and, secondly, because those not listed here do not have an immediate relevance to issues of delimiting coastal States' continental shelves, especially in the presence of such a regional situation as that confronted in this article.

29. I.C.J. Rep. 1969 pp. 20, 36.

30. I.C.J. Rep. 1969 p. 47. See also Goldie, “North Sea Cases”, supra n. 23, at pp. 359–67.

31. I.C.J. Rep. 1969 p. 33.

32. I.C.J. Rep. 1969 pp. 24–26, 27, 32–36, 38, 40–43.

33. I.C.J. Rep. 1969 p. 49.

34. I.C.J. Rep. 1969 pp. 49–50.

35. I.C.J. Rep. 1969 p. 3.

36. I.C.J. Rep. 1969 p. 36.

37. Id.

38. Id.

39. I.C.J. Rep. 1969 p. 54.

40. Sovereignty over these groups of islets and reefs, insofar as they are capable of appropriation, were adjudged, by the International Court, to belong to the United Kingdom. See Minquiers and Ecrehos case, I.C.J. Rep. 1953 p. 72. For a description of their physical location, see text accompanying n: 20 supra.

41. See, supra, text accompanying n. 20 for a reference to their adjacency to the coast of France (i.e., French Normandy).

42. See. supra, the text accompanying n. 20.

43. Done 29 April 1958. (1964) 2 U.S.T. p. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. p. 205, effective 10 September 1964 [hereinafter cited as “Convention on the Territorial Sea”].

44. Supra n. 43.

45. North Sea Continental Shelf cases, I.C.J. Rep. 1969 p. 39.

46. 5 C.Rob. 373, 165 E.R. 809 (Admiralty, 1805).

47. 5 C.Rob.373. at 385c, 165 E.R. 809, 815 (Admiralty, 1805).

48. 32 T.L.R. 652.

49. See Oppenheim, International Law, vol. I, 8th ed. by Lauterpacht, H. (London: Longmans, Green & Co., 1955), p. 565Google Scholar [hereinafter cited as “1 Oppenheim”].

50. See, e.g., Fulton, T., The Sovereignty of the Sea (Edinburgh, London: Blackwood, 1911), pp. 641–44Google Scholar. See also McNair, , International Law Opinions vol. I, (Cambridge: University Press, 1956). pp. 371–73.Google Scholar

51. See supra, n. 38 and the accompanying text.

52. Helgoland lies considerably out into the North Sea, unlike the Friesland Islands of which it is not a member, it could not be considered as a “kind of portico to the mainland”.

53. I.C.J. Rep. 1951 p. 116. See also text accompanying n. 10 supra.

54. “Boundary of the Continental Shelf”, 12 Japanese Annual of International Law (1968) pp. 264, 280–282Google Scholar. Accord: (1) McDougal, & Burke, , The Public Order of the Oceans, pp. 436–37Google Scholar; (2) Lauterpacht, , “Sovereignty over submarine areas”, 27 British Year Book of International Law (1950). pp. 376. 410Google Scholar; (3) Gutteridge, , “The 1958 Geneva Convention on the Continental Shelf”, 35 British Year Book of International Law (1959), pp. 102, 120Google Scholar; (4) Padwa, , “Submarine Boundaries”, 9 The International and Comparative Law Quarterly (1960) pp. 628, 652.CrossRefGoogle Scholar

55. See, supra n. 14 and the accompanying text.

56. Ely, supra n. 5.

57. Id., at pp. 227–30.

58. Id., at p. 236.

59. I.C.J. Rep. 1969 p. 22.

60. For an introductory discussion of this principle see supra n. 21 and the accompanying text.

61. See, e.g., Friedmann, , “The North Sea Continental Shelf Cases – A Critique”, 64 American Journal of International Law (1970) pp. 229, 236–37.CrossRefGoogle Scholar

62. See, e.g., I.C.J. Rep., 1969 pp. 22, 31–32.

63. Id., at p. 51.

64. See, supra n. 21 and the accompanying text.

65. Id.

66. Park, C.-H.. Continental Shelf Issues in the Yellow Sea and the East China Sea (Law of the Sea Institute. University of Rhode Island Occasional Papers No. 15, mimeo. Sept. 1972), p. 37Google Scholar. See also Park, C.-H., “Oil Under Troubled Waters; The Northeast Asia Sea-Bed Controversy”, 14 Harvard International Law Journal (1973) p. 212.Google Scholar

67. The Taiwan-Sinzi Fold is a tectonic dam behind which the sediments comprising the upper strata of the Hast China Sea's continental shelf have been collected. For a description of the “tectonic dam” in a continental shelf or slope region see Emery, , “The Continental Shelves”, 221 Scientific American (Special Issue, The Ocean, Sept. 1969) pp. 106, 109–11.Google Scholar

68. Fairbridge writes:

The East China Sea floor is divided into two contrasting provinces: the continental shelf with shelfbrcak at 150–166 m and a broad trough extending from Formosa to Kyushu along the inner side of the Ryukyu island arc. For easy identification we suggest it be referred to as the Okinawa Trough, to distinguish it from the trench along the outer edge of the Ryukyus (Nansei Shoto). the Ryukyu or Nansei Shoto Trench (which belong in the Philippine Sea, q.v.). The Okinawa Trough has a large area over 1000m and a maximum depth of 2717m. The shelf is part of one of the largest shelves in the world, extending from the Gulf of Pohai and the Yellow Sea…, and south through the Formosa Strait to the South China Sea shelf and the Gulf of Tonkin. There are some scattered islets near its outer edge, the Senkaku Gunto.

See Fairbridgc, Encyclopaedia of Oceanography (1966) pp. 239–40.Google Scholar [hereinafter cited as “Fairbridge”].

69. See quotation from Fairbridge, supra n. 68, and the discussion of the Taiwan-Sinzi Folded Zone in n. 67 supra.

70. See. supra, n. 23, 59 and 62 and the text accompanying them.

71. I.C.J. Rep. 1969 p. 30.

72. See, e.g.. Goldie, , “A Lexicographical Controversy – The Word ‘Adjacent’ in Article 1 of the Continental Shelf Convention”, 66 American Journal of International Law (1972) p. 829, and the authorities therein cited.CrossRefGoogle Scholar

73. International Law Commission, Report Covering the Work of its Eighth Session, 23 April-4 July 1956, G.A.O.R. 11 session, suppl. No. 9 at p. 11, U.N. Doc. A/3159 (1956), I.L.C. Yearbook 1956 vol. II pp. 264, 296.

74. I.L.C. Yearbook 1956 vol. I p. 137. (Dr. Garcia Amador, Chairman, J.P.A. François, Special Rapporteur and Sir Gerald Fitzmaurice); Commentary (8) on Art. 67 (the Commission's draft of what later became Art. 1 of the Continental Shelf Convention), U.N. Doc. A/3159, supra n. 73, at. p. 42; A/CONF. 13/42, supra n. 1, at p. 9 (Alvarez Aybar), p. 41 (Gutteridge, discussing the joint proposal of the United Kingdom and the Netherlands, U.N. Doc. A/CONF.13/C.4/L.32), note the use of the term “adjacent” in para. 1 of the United Kingdom's revised proposal, U.N. Doc. A/CONF.13/C.4/L.24/Rev.1.

75. A/CONF. 13/42, supra n.1, at pp. 4–5 (Mr. Stabell's insistence on the claims of territorial waters stemmed from the fact that great areas of sea which the International Court of Justice assured to Norway as internal or territorial waters were much deeper than 200 meters. Again, his criticism of a depth criterion teems reasonable to be connected with the problems such a criterion could make for a Norwegian claim, as of right, to enjoy continental shelf rights in the seabed of the North Sea out to a median line and leaping over the Norwegian Trench.

76. A/CONF.13/42, supra n. 1, at p. 41. See also International Law Commission, Report Covering the Work of its Eight Session, 23 April-4 July 1956, G.A.O.R. 11 session, suppl. 9 at p. 12, U.N. Doc. A/3159 (1956), I.L.C. Yearbook 1956 vol. II p. 297.

77. A/CONF.13/42, supra n. 1, at p. 48.

78. Agreement Between the Government of Great Britain and Northern Ireland and the Government of the Kingdom of Norway Relating to the Delimitations of the Continental Shelf Between the Two Countries, done 10 March 1965, entered into force 29 June 1965, (Great Britain) Treaty Series 1965 No. 71 (Cmnd. 2757).

79. See, supra, n. 77.

80. See, supra, n. 77.

81. Goldie, , “A Symposium on the Geneva Conventions and the Need for Future Modifications” in The Law of the Sea – Offshore Boundaries and Zones, ed. Alexander, (Ohio State University Press, 1967) pp. 273, 277.Google Scholar

82. Westlake, , International Law, vol. I (Cambridge: University Press, 1910) pp. 119–20Google Scholar. The Seven Stone Rocks were, more recently (namely on Sunday 18 March 1967 between 9.10 and 9.30 (AM) the scene of the Torrey Canyon disaster. One problem the Law Officers of the Crown, and the then British Prime Minister, Mr. Harold Wilson, appeared to have with taking immediate emergency action was, mistakenly I submit, on the grounds that the Seven Stones' were free high seas and beyond the limits of the exercise of State authority. For a discussion of the false dilemmas which appeared to inhibit effective decision-making on Mr. Wilson's part, see Goldie, , “Book Review”, 1 Journal of Maritime Law and Commerce (1969) pp. 155, 157–58Google Scholar. See also Goldie, , “International Principles of Responsibility for Pollution”, 9 Columbia Journal of Transnational Law (1970) pp. 283, 299.Google Scholar

83. Oppenheim, supra n. 49, at p. 501.

84. Lindley, , The Acquisition and Government of Backward Territory in International Law (London: Longmans, 1926), pp. 65–67.Google Scholar

85. Iran-Saudi Arabia, Agreement Concerning Sovereignty Over A1-‘Arabiyah and Farsi Islands and Delimitation of Boundary Line Separating Submarine Areas Between the Kingdom of Saudi Arabia and Iran, signed 24 October 1968, 8 International Legal Materials (1969) p. 493Google Scholar (effective 29 January 1969). See also, Young, , “Equitable Solutions for Offshore Boundaries: The 1968 Saudi-Arabia-Iran Agreement”, 64 American Journal of International Law (1970) p. 152.CrossRefGoogle Scholar

86. See, Ely, supra n. 5, at pp. 229, 230.

87. See, The Anna, 5 C.Rob, p. 373 at p. 385c, 165 E.R. pp. 809, 815 (Admiralty, 1805), and the text accompanying n. 47 supra.