The Continental Shelf Redefinition, with
Special Reference to the Arctic
Donat Pharand *
I THE PRESENT DEFINITION OF THE CONTINENTAL SHELF
a. The Notion of ‘Natural Extension’ ………………………..
b. The Factor of ‘Adjacency’ . ………………………………………………………
c. The Criterion of ‘Exploitability’ . ………………………………………………………..
536
538
……. 540
. 543
II REDEFINITION OF THE CONTINENTAL SHELF …………….
a. U .N . Sea-B ed Activities ………………………………………………………………………..
b. The U.S. Draft Convention …………………………….
c. Urgency and Perspectives of a Redefinition ……………………………………….
547
548
551
555
The present debate in the United Nations Sea-Bed Committee
relating to a redefinition of the continental shelf takes on special
importance when the various proposals are applied to the Arctic.
Indeed, it is there that we find the largest continental shelves in the
world. The purpose of this study is to review the meaning of the
present definition of the continental shelf and to discuss the main
proposals for a redefinition in the light of their application in the
Arctic.
I. The Present Definition of the Continental Shelf
The question of the outer edge of the continental shelf is dealt
with in the Convention on the Continental Shelf of 1958. It came into
force on.June 10, 1964 and 47 states are now Parties to the Conven-
* Professor of Law, Civil Law Section, Faculty of Law, University of Ottawa.
This article is part of a larger study on the Arctic Sea-bed sponsored by The
Arctic Institute of North America with the approval and financial support of
the Office of Naval Research under contract N00014-70-A-0219-0001
(Sub.
contract ONR-435).
No. 4]
THE CONTINENTAL SHELF REDEFINITION
tion. Four of the five Arctic states have ratified the Convention: the
U.S.S.R. (22 November 1960); the United States (12 April 1961),
Denmark (12 June 1963); and Canada (8 February 1970). Norway
did not sign the Convention in 1958 and has not yet acceded to it
but, for the purpose of examining the extent of costal states’ rights
over the continental shelf, it can be assumed that such rights have
become part of the basic legal concept of the continental shelf. It
is generally agreed that this legal concept has passed into interna-
tional customary law in the nineteen fifties.’ In addition, Norway
has adopted national legislation claiming jurisdiction over submarine
areas “as far as the depth of the superjacent waters admits of exploi-
tation of natural resources”. 2 It is therefore obvious that Norway
invokes the criterion of exploitability contained in article 1 of the
Continental Shelf Convention. In these circumstances, article 1 of
the Convention may be taken as representing the present law on the
subject. It reads as follows:
For the purposes of these articles, the term “continental shelf” is used as
referring (a) 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;
(b) to the seabed and subsoil of similar areas adjacent to the coasts of
islands.
With the developing technology permitting the exploitation of the
seabed and subsoil at increasing depths, the interpretation of this
provision has become the subject of considerable controversy. More
specifically, the question arises as to whether the exploitability
criterion may serve as an adequate way of defining the limit of the
continental shelf beyond 200 meters. It is now agreed that, regard-
‘ In his extensive study of the question of sovereignty over submarine areas
back in 1950, Lauterpacht concluded that the continental shelf doctrine had
already become part of customary international law. See: H. Lauterpacht,
Sovereignty over Submarine Areas (1950), 27 B.Y.I.L. 376, at pp. 393-398.
Lord Shawcross came to a similar conclusion when he said: “By 1953 the
practice of so many states, generally acquiesced in by the rest, had I think
resulted in the acceptance of the principle that a State has ipso jure and
without proclamation sovereign rights over submarine areas in its continental
shelf as part of custom in international law”. See: Lord Shawcross, The Law
of the Continental Shelf with special reference to the North Sea, The World
Land Use Survey Discourses to the Twentieth International Geographic Con-
gress (1964), 35, at p. 36.
2See Sec. I of Act No. 12 of 21 June 1963 relating to the Exploration for and
Exploitation of Submarine Natural Resources, in Survey of National Legisla-
tion, prepared by the U.N. Secretariat, U.N. Doc. A/AC. 135/11 (4 June 1968),
at p. 46.
McGILL LAW JOURNAL
(Vol. 18
less of the technical possibilities of exploitation of natural resources
of the sea floor, there must be a limit beyond which the coastal state
has no jurisdiction. The question remains “where should that limit
be?” This question has been examined by many but is still unre-
solved This study does not pretend to find a solution to the contro-
versy –
only a new international agreement or an interpretative
declaration by the Parties to the Convention could do this effec-
tively – but it does attempt to throw some light on three basic
aspects of the continental shelf as a legal concept: (a) the notion of
natural extension; (b) the factor of adjacency; and (c) the criterion
of exploitability.
a. The Notion of ‘Natural Extension’
The idea that the continental shelf is the natural extension or
appurtenance of the land territory or domain over which the coastal
state has complete sovereignty was at the basis of the Truman
Declaration of 1945 which, as stated by the International Court in
the North Sea Continental Shelf Cases, “soon came to be regarded
as the starting point of the positive law on the subject”.4 Indeed,
the Proclamation of President Truman on September 28, 1945
specified in its Preamble as one of the reasons for claiming jurisdic-
tion over the mineral resources of the continental shelf that “the
continental shelf may be regarded as an extension of the land-mass
of the coastal nation and thus naturally appurtenant to it”. The
Proclamation further stated that “these resources frequently form
a seaward extension of a pool or deposit lying within the territory”.
It is important to note that these were stated in the form of reasons
and justifications for the Proclamation. The idea of the seaward
extension of the land-mass is therefore at the very basis of the coastal
3 See, for instance, the 1970 Report of the I.L.A. Committee on Deep-Sea
Mining, reproduced as Appendix F to the Report by the Special Committee on
Outer Continental Shelf to the Committee on Interior and Insular Affairs,
U.S. Senate, (21 Dec. 1970), 100 at p. 112, where it is stated: “At this stage
the Committee is unable to put forward an agreed recommendation on the
problem of the outer limit of the continental shelf”.
4 (1969), IC.J. Rep. 3, at pp. 33-34. It is interesting to note in passing that the
same notion of natural prolongation was at the basis of the Russian Declara-
tion of September 26, 1916, claiming sovereignty over a number of islands
which it considered “une extension vers le nord de la plateforme continentale
de la Sib6rie;” See Appendix in V. L. Lakhtine, Rights over the Arctic
Regions, (Moscow, 1928).
5 Reproduced in 4 Whiteman, Digest of International Law, (1965), at p. 756,
Emphasis added.
6 Id., emphasis added.
No. 4]
THE CONTINENTAL SHELF REDEFINITION
state’s jurisdiction over the continental shelf, and it was so recogniz-
ed by the International Law Commission.7
As for the 1958 Convention on the Continental Shelf, it did not
expressly incorporate the notion of natural extension or appur-
tenance, but it certainly appears to underlie one of its provisions
which stipulates that “the rights of the coastal State over the
continental shelf do not depend on occupation, effective or notional,
or on any express proclamation” (Art. 2(3)).
The fundamental importance of the concept of “natural exten-
sion” was also emphasized by the International Court in the North
Sea Continental Shelf Cases.8 In -refuting Germany’s argument that
a coastal state was entitled to a just and equitable share of the
available continental shelf, the Court made the following pronoun-
cement:
… the doctrine of the just and equitable share appears to be wholly at
variance with what the Court entertains no doubt is the most fundamental
of all the rules of law relating to the continental shelf, enshrined in
article 2 of the 1958 Geneva Convention, though quite independent of it, –
namely that the rights of the coastal State in respect of the area of
continental shelf that constitutes a natural prolongation of its land
territory into and under the sea exist ipso facto and ab initio, by virtue of
its sovereignty over the land, and as an extension of it in an exercice of
sovereign rights for the purpose of exploring the seabed and exploiting
its natural resources.9
The court underlined again at a later stage in its judgment that “it is
this idea of extension which is, in the Court’s opinion, determinant”. 10
The submarine areas constituting the continental shelf, said the
Court, “may be deemed to be actually part of the territory over which
the coastal state already has dominion, –
in the sense that, althrough
covered with water, they are a prolongation or continuation of that
territory, an extension of it under the sea.”‘1 In short, the coastal
state has jurisdiction over submarine areas which may be considered
as the natural extension or prolongation of its land territory. But
the question remains: “what does this mean in practical terms?”.
Leaving aside the question of ‘adjacency’ for the moment, the crite-
7 For a discussion of the legal basis of the coastal state’s jurisdiction, see:
(1956), I.L.C. Yearbook (II) 298.
8 This is clearly demonstrated by Professor Jennings in The Limits of
Continental Shelf Jurisdiction: some Possible Implications of the North Sea
Case Judgment, (1969), 18 Int’l & Comp. L.Q. 812, at p. 821-825; emphasis added.
9 (1969) I.C.J. Rep. 3, at p. 22; emphasis added.
loIbdi., at p. 31; emphasis added. None of the dissenting judges expressed
disapproval of this opinion.
11 (1969) I.CJ. Rep. 3, at p. 31; emphasis added.
McGILL LAW JOURNAL
[Vol. 18
rion of ‘natural extension’, as pointed out by Professor Jennings,r2
brings in not only the geological continental shelf but the continental
slope also, since they are made up of the same type of rock. The only
difference between the two features is in the degree of slope or
gradient. The continental rise, however, poses a problem. As seen
earlier, it will often cover rock belonging partly to the slope and
partly to the abyssal plain. In these circumstances, the only sure way
to determine the limit of the natural extension is to stop at the in-
ward edge of the continental rise rather than at its outward edge.
Another reason which makes this preferable is the fact that the rise
might sometimes be so wide that its outer edge could no longer be
considered as being “adjacent to the coast”. 13
b. The Factor of ‘Adjacency’
The element of adjacency or proximity is expressly mentioned in
the Convention, and it has the specific function of qualifying and
limiting the exploitability criterion. The importance of this function
grows with the time, since technology makes it possible to exploit at
ever increasing depths. Not only is this factor of “adjacency”
expressly incorporated in the Convention but, taken as being syno-
nymous to contiguity, it has always been considered as part of the
justification for the coastal state’s jurisdiction over the continental
shelf. The operative part of the Truman Proclamation of 1945 speci-
fies that the natural resources regarded as being subject to the
jurisdiction and control of the United States are those “of the
continental shelf beneath the high seas but contiguous to the coasts
of the United States”.14 The Press Release issued on the same day
specified that “(g)enerally, submerged land which is contiguous to
the continent and which is covered by no more than 100 fathoms
(600 feet) of water is considered as the continental shelf.”‘ The
importance of contiguity as a possible legal basis of jurisdiction over
submarine areas was very carefully examined by Professor Lauter-
pacht in 1950.16 He considered that, although contiguity may have
served in the past as a basis for making exaggerated territorial
claims, “(t)his does not mean that in a case such as that of submarine
areas it does not represent the only solution consonant with conve-
nience, economic necessities and requirements of international
12 Op. cit., n. 8, at p. 829.
‘3 Op. cit., n. 8, at p. 830.
14 Whiteman, op. cit., n. 5, at p. 757; emphasis added.
15 Ibid., at p. 758; emphasis added.
16 See: Lauterpacht, H. Sovereignty over Submarine Areas, (1950), 27 B.Y.I.L.
376, at p. 423 et seq.
No. 4]
THE CONTINENTAL SHELF REDEFINITION
peace”17 The International Commission has also emphasized the
importance of contiguity as a basis for jurisdiction over the conti-
nental shelf. In its report of 1956, the Commission states that it is
not possible “to disregard the geographical phenomenon whatever
the trem – propinquity, contiguity, geographical continuity, appurte-
nance or identity –
used to define the relationship between the
submarine areas
in question and the adjacent non-submerged
land”. 8 And the Commission adds: “All of these considerations of
general utility provide a sufficient basis for the principle of the
sovereign rights of the costal State as now formulated by the
Commission.”‘”
As already seen, the Commission suggested, and the Geneva
Conference adopted, the expression “adjacent to” to characterize the
submarine areas whose natural resources are subject to the jurisdic-
tion of the coastal state. In proposing the expression adjacent to the
coastal state, Dr. Garcia-Amador explained to the International Law
Commission that those words placed a definite limitation on the
submarine areas envisaged. He stated that “(t)he adjacent areas
ended at the point where the slope down to the ocean bed began,
which was not more than 25 miles from the coast”2
As for the International Court, it did not consider the factor of
‘adjacency’ as being as fundamental in importance as that of natural
extension to justify the exercice of jurisdiction by a coastal state,
but it certainly did not reject it as an important consideration to
impose a limit on the distance which a state may claim in the
exercice of that jurisdiction. True, the Court was discussing the
meaning of adjacency in the context of article 6 of the Convention
relating to boundary lines between opposite or adjacent states and
not in the context of article 1 relating to the outer limit of the
continental shelf; however, it is submitted that the Court’s interpre-
tation of the expression “adjacent to” in the context of article 6 is
substantially applicable to the same expression in the context of
article 1. Indeed, the Court did not specifically refer to article 6
when discussing the meaning and importance of ‘adjacency’. After
stating that “the idea of absolute proximity is certainly not implied
by the rather vague and general terminology employed in the litera-
ture on the subject,” 21 the Court went on to make a rather important
17 Ibid., at p. 430.
Is (1956) I.L.C. Yearbook (II), at p. 298.
19 Id.
20 (1956) I.L.C. Yearbook (I), at p. 134.
21 (1969) I.CJ. Rep. 3, at p. 30.
McGILL LAW JOURNAL
[Vol. 18
pronouncement, albeit an obiter dictum, on the meaning of the
expression “adjacent to” used in the Convention. It said in particular:
To take what is perhaps the most frequently employed of these terms,
namely “adjacent to”, it is evident that by no stretch of the imagination can
a point on the continental shelf situated say a hundred miles, or even
much less, from a given coast, be regarded as “adjacent to” it, or to any
coast at all, in the normal sense of adjacency, even if the point concerned
is nearer to some one coast than to any other 22
Now the Court did not say that a continental shelf may never
extend to 100 miles. Indeed, the whole sea bed of the North Sea
consists of a continental shelf of less than 200 meters, except for
the Norwegian trough along part of the Norwegian coast, and the
median line between the United Kingdom and Norway is over 300
km in places.23 The Court was careful to specify that it was then
referring to “the normal sense of adjacency”, which implies proximity
or nearness. But it must have a wider meaning than that in the
Convention; otherwise, the expression “adjacent to” would make no
sense in article 1, which incorporates the exploitability criterion; nor
would it make more sense in article 6, which envisages cases “where
the same continental shelf is adjacent to the territories of two or
more states” or “where the same continental shelf is adjacent to the
territories of two adjacent States”.
What the Court explained, in effect, was that the expression “adja-
cent to” in the convention did not necessarily mean ‘proximate to’.
For instance, said the Court, “a point inshore situated near the meet-
ing place of the coasts of two States can properly be said to be adja-
cent to both coasts, even though it may be fractionally closer to the
one than the other …. Indeed, local geographical configuration may
sometimes cause it to have a closer physical connection with the coast
to which it is not in fact closest”. 4 As a consequence, the Court con-
cluded that “(t)here seems …
to be no necessary, and certainly no
complete, identity between the notions of adjacency and proximity.12
5
The fact remains, however, that the notion of adjacency was
inserted and retained in the Convention for a purpose. It is interes-
ting to note on this point that, when France acceded to the Conven-
tion in June 1965, it attached the following Declaration relating to
article 1 which states: “In the view of the Government of the French
Republic, the expression “adjacent” areas implies a notion of geophy-
22 1d.
2 See large scale map of the North Sea in back cover pocket of I North Sea
24 (1969) I.C.J. Rep. 3, at p. 30.
25 Ibid., at p. 30.
Continental Shelf Cases – LC.J. Pleadings (1968).
No. 4]
THE CONTINENTAL SHELF REDEFINITION
sical, geological and geographical dependence which ipso facto rules
out an unlimited extension of the continental shelf. ’26 It might also
be significant that, of the 46 other states that have ratified or
acceded to the Convention, only 3 have taken note or reserved their
position with respect to the French Declaration: the United Kingdom,
on January 14, 1966,27 the United States on September 9, 1965,28 and
Canada on February 6, 1970.29 However, without attaching undue
importance to this fact, surely the purpose of inserting the qualifying
adjacency factor must have been to impose some seaward limit to
the jurisdiction of the coastal state. Otherwise, the sole limit would
be the farthest point at which technology can permit exploitation,
and the qualifying expression becomes meaningless.
c. The Criterion of ‘Exploitability’
Article 1 of the Convention on the Continental Shelf limits the
outer edge of the continental shelf “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”.
This so-called exploitability criterion has given rise to difficulties
of interpretation right from the beginning, when it was discussed in
the International Law Commission. It was first adopted by the Com-
mission in 1951, abandoned in 1953, and retained again in the 1956
draft on a majority vote 0 The purpose here is not to retrace the
whole history of article 1 of the Convention 31 nor to review the
controversy which has been going on ever since over the proper
interpretation of the exploitability criterion. The object rather is to
26Multilateral Treaties in respect of which the Secretary General performs
depository functions (List as at 31 December 1970). ST/LEG/SER/D/4, at
p. 376.
27 Ibid., at p. 378.
281d.
29 Ibid., at p. 377.
.10 For a brief history of this criterion, see Commentary in the Report to
I.L.C. Yearbook (II), at pp. 213-214 and
the General Assembly in (1953),
(1956), I.L.C. Yearbook (II), at pp. 296-297.
31 This was already done by Lt. B. H. Oxman (U.S.N.R.) of the Office of the
Judge Advocate General; see: The Preparation of Article I of the Convention
on the Continental Shelf, P.B. No. 182100 (1968). For a summary of the dis-
cussions on article 1 at the Geneva Conference, see Whiteman M. Conference
on the Law of the Sea: Convention on the Continental Shelf, (1958), 52 A.J.I.L.
629, at pp. 633-634. See also: J. A. C. Gutteridge, The 1958 Geneva Convention
on the Continental Shelf, 35 B.Y.I.L. 102, at pp. 106-110; and L. F. E. Goldie,
The Contents of Davy Jone’s Locker – A Proposed Regime for the Seabed
and Subsoil, 22 Rutgers Law Rev. 1-66, at pp. 1-21.
McGILL LAW JOURNAL
[Vol. 18
present a simple proposition, namely that the fixed limit criterion of
200 meters was intended to be the normal limit and that the supple-
mentary criterion of exploitability beyond that limit was meant to
cover exceptional cases.
The Commentary to draft article 67 (which became article 1 of
the Convention) explains why certain members of the Commission
wished to re-introduce the exploitability criterion. The Commentary
states: “While maintaining the limit of 200 meters in this article as
the normal limit corresponding to present needs, they wished to
recognize forthwith the right to exceed that limit if exploitation of
the seabed or subsoil at a depth greater than 200 meters proved
technically possible.”32 The eventual technical possibility to exploit
at a greater depth than the normal limit of 200 meters therefore
constitutes the first reason for the exception. The second reason
advanced was to cover the case where there is no continental shelf
in the normal sense but “where the depth of the sea would never-
theless permit of exploitation of the subsoil in the same way as if
there were a continental shelf”.P A reading of the summary records
of the discussions which took place in the Commission bears out
the accuracy of the Commentary just quoted from. In other words,
the exploitability criterion was intended to serve a supplementary
role to the fixed limit criterion of 200 meters but was never meant
to supplant it.34 Now, with the extensive interpretation which is being
32 (1956), I.L.C. Yearbook (II) at p. 296; emphasis added.
33 Ibid., at p. 297.
34 A number of writers have expressed similar views and some of them are
mentioned here. R. Young, maintains that “there is no evidence in the pre-
paratory work for the Convention. either in the International Law Commission
or at the Conference, of any thought that the shelf regime should apply to
the great ocean depths”. See: The Limits of the Continental Shelf – And
Beyond, Proceedings of the Amer. Soc. of Int’l Law (1968), 229, at p. 330. Ma%
Sorensen states: “The legal concept of the continental shelf cannot reason-
ably be understood, even in its widest connotation, as extending far beyond
the geological concept”. See his dissenting opinion in the North Sea Continen-
tal Shelf Cases, (1969), I.C.J. Rep. 3 at p. 249. J. Andrassy maintains: “The
framers of the Convention intended that the exploitability test only supple-
ment the 200 meter isobath test in exceptional circumstances; in normal times
they considered the isobath test controlling.” International Law and the
Resources of the Sea, (1970), at p. 87. The Commission to Study the Organiza-
tion of Peace, presided by Professor Louis Sohn, came to the conclusion that
“whatever the reasons for its inclusion, the exploitability criterion was
originally regarded as subordinate in importance to the 200 meter depth
line.” – The United Nations and the Bed of the Sea. (March 1969), at p. 23.
As for the opinion of Soviet jurists, Professor Butler states that, in their view,
there is no basis for interpreting article 1 of the Convention as permitting an
No. 4]
THE CONTINENTAL SHELF REDEFINITION
given by some, the exception (exploitability criterion) is gradually
replacing the rule (fixed criterion). A good example of such extensive
interpretation is that given by the U.S. Senate’s Subcommittee on the
Outer Continental Shelf, chaired by Senator Metcalf, which interprets
the definition of the continental shelf as including “the entire conti-
nental margin”. 5
The Report of the Special Subcommittee states in particular:
The exploitability clause read together with the adjacency clause clearly
connotes an expanding boundary which at any given time extends to the
limit of exploitability then existing within an ultimate limit of adjacency.
Adjacency as applied to the legal Continental Shelf means the seaward
limit of the natural prolongation of the submerged land continent. The
submerged land continent encompasses the geomorphic shelf, slope and
rise.36
When it is recalled that the average depth of the seaward edge of the
rise is 4,000 meters, it becomes obvious that the fixed limit criterion
of 200 meters of the continental shelf has been left behind 20 times
over. Indeed, we are no longer talking about the continental shelf;
we are construing article 1 of the Convention as if the draftsmen
of the Convention had defined the submerged areas without referen-
ce to any specific feature. However, the fact is that the International
Law Commission was quite familiar with the different features of
submerged areas and indeed, when it decided to retain the exploita-
bility criterion, considered the idea of eliminating altogether the
expression continental shelf and retaining simply the expression
submarine areas which already appeared in the definition. As clearly
stated in the Commentary, “(t)he majority of the Commission
decided to retain the term “continental shelf” because it’is in current
use and because the term “submarine areas” used without further
explanation would not give a sufficient indication of the nature of
extension of sovereign rights to explore and exploit the deep seabed. Win. E.
Butler, The Soviet Union and the Law of the Sea, (1971), at p. 145. He adds:
“These jurists also find nothing in the proceedings of the International Law
Commission to justify such an interpretation; throughout its discussions, the
commission is said to have assumed that there existed a natural, geological
limit to the shelf beyond which sovereign rights to explore and exploit the
seabed are not granted”. This is essentially the view of S. Nikolaev who con-
cludes: “The criterion of the 200 meter depth clearly defines the average outer
limit of geological shelf and therefore is of most vital importance”. –
S.
Nikolaev, Where is the Limit of National Jurisdiction, (1971), Soviet State and
Law 53, at p. 60; this article published in Russian was translated for the writer
by Professor Ann Kleimola (Ph.D.) of the University of Nebraska.
3 5 See: Report by the Special Subcommittee on the Outer Continental Shelf
to the Committee on Interior and Insular Affairs, (Washington, 1971), at p. 29.
16 Ibid., at p. 16.
McGILL LAW JOURNAL
[Vol. 18
the areas in question. ’37 In other words, the whole purpose of
retaining the term “continental shelf” was to impose a definite limita-
tion upon the submarine areas envisaged. This intention was im-
pliedly confirmed by the 1958 Conference when it defeated an amend-
ment introduced by Panama which would have excluded from the de-
finition of the continental shelf any limitation in figures and would
have retained the geological criterion only. The amendment proposed
that the usual expression “continental shelf” be used to designate the
continental margin of the sea-bed composed of the shelf and the
slope, up to deep-sea oceanic basins.38 It was defeated by a vote of
38 to 4, with 26 abstentions. 39 In these circumstances, one must agree
with the conclusion of the Soviet jurist Nikolaev that “the partici-
pants in the Conference were not inclined to include the slope in the
juridical concept of the continental shelf”.40
However, in spite of the intention of the International Law Com-
mission and the 1958 Conference to impose a limit in the light of
foreseable technological developments, the fact is that technology
is developing to the point where the exploration and exploitation
are becoming possible much beyond the continental shelf as con-
templated in the Convention. It was reported recently that the
Glomer Challenger had “bored 4,264 feet into the bottom of the
Arabian Sea beneath 11,610 feet of water”.41 In addition, exploitation
of manganese nodules will soon be possible at depths ranging up
to 5,000 metres. Mr. McKelvey of the United States stated in the
Sea-bed Committee of the U.N. on 14 March 1972 that “24 companies
from various countries intended to finance in the summer of 1972
a programme to test the continuous line bucket dredging system,
which had been invented in Japan and was designed to recover
Pacific sea-floor nodules from depths ranging to 5,000 metres”.42
37 (1956), I.L.C. Yearbook, (II), at p. 297.
38 Confdrence des Nations Unies sur le droit de la iner, Vol. VI; 4e Com.;
A/CONF. 13/42, (1958), at p. 147.
39 Ibid., at p. 57.
40S. Nikolaev, op. cit., n. 34.
41 See: Walter Sullivan, 4 Years of Sea Drilling Yields Vast Lore, in N.Y.
Times, (29 May 1972), at p. 1.
42 See: A/AC.138/S.C.1/SR.37, (17 March 1972), at p. 13. The representative
of Japan described the continuous line bucket technique in the following
terms: It consisted of a continuous wire cable suspended from two winches
at either end of a ship. The buckets, essentially scoops, were attached at
intervals on the wire cable. They were lowered vertically from the ship to the
sea-bed; then, turning horizontally, each bucket in turn took its scoop from
the sea-bed. The buckets were then raised vertically and emptied into the ship.
See: A/AC.138/SCI/SR38 (16 March 1972), at p. 8.
No. 4]
THE CONTINENTAL SHELF REDEFINITION
Considering these developments, the definition of 1958 has simply
become obsolete.43 Either it must be changed to fit the facts or
restrict the facts to the definition. The first solution is, of course,
the more reasonable course to follow and is being proceeded with.
II. Redefinition of the Continental Shelf
The redefinition of the continental shelf has been the subject of
considerable study and debate during the past several years. This
debate has been particularly active since August 1967, when Ambas-
sador Pardo of Malta made his proposal at the United Nations to
consider the sea floor and subsoil beyond the limit of national
jurisdiction as a common heritage of mankind. He suggested to
reserve the deep sea area exclusively far peaceful purposes and to
have it administered by an international agency for the benefit of all
peoplesr The implementation of such a proposal presumes, of
course, that agreement must be reached as to the limit of national
jurisdiction. The outer limit of the continental shelf must be fixed,
and it is on the determination of that outer limit that disagreement
4 3 It must be stated, of course, that some commentators do suggest to keep
the definition as it is and exploit to the maximum the exploitability criterion.
This is the opinion of the U.S. National Petroleum Council (which prepared a
report for hte Department of the Interior), of L. W. Findlay (former manager,
Government Relations Department, Standard Oil Company, New Jersey), and
of 0. L. Stone (General Counsel for Shell Oil, New-York). See: N.P.C. Report
on Petroleum Resources under the Ocean Floor (1969); L. W. Findlay, The
Outer Limit of the Continental Shelf, (1970), 64 A.J.I.L. 42, and 0. L. Stone,
Some Aspects of Juridiction Over Natural Resources Under the Ocean Floor,
(1970), 3 Natural Resources Lawyer 155. It should be added that Professor
Oda, of Japan, has also interpreted the exploitability criterion in such a way
that “all the submarine areas of the world have been theoretically divided
among the coastal states at the deepest trenches”. He hastens to add, however,
that he is in favour of a revision and that he “does not suggest that, as lex
ferenda, the deep sea should be divided amongg the various coastal states”.
See: S. Oda, Proposals for Revising the Convention on the Continental Shelf,
(1968), 7 Colum. J. Transnat’l L. 1, at p. 9.
44 See: U.N. Doc. No. A/6695 (XXII), 18 August 1967.
46 Ambassador Pardo has explained his proposal in a number of places out-
side the United Nations. See: Sovereignty under the Sea, (1968), The Round
Table, 341; Panel: whose is the Bed of the Sea, (1968), Proc. of Amer. Soc. of
Int’l Law at pp. 216-229; An International Regime for the Deep Seabed: Deve-
loping Law or Developing Anarchy, (1969), 5 Texas Int’l Law Forum, 204; and
statement in front of the U.N. ad hoc Seabed Committee, U.N. Doc. A/AC
135 WG. l/S.R.7, (27 June 1968), at pp. 48-53.
McGILL LAW JOURNAL
[Vol. 18
begins. Some advocate a narrow shelf, others suggest a wide one,40
and various criteria are proposed to indicate the extent of the shelf.
The criteria are based on exploitability, geology, depth, distance, or
a combination of depth and distance.47 Due to the difficulties of
reaching agreement on a redefinition of the shelf, the efforts at the
United Nations have focused on the legal regime and machinery
which will apply to the international area of the sea-bed beyond the
continental shelf properly so-called or the limits of national juris-
diction, leaving such limits to be determined later. Of course, it is
difficult, if not impossible, to discuss adequately the legal regime
of the international area without reference to the limits of national
jurisdiction. Consequently, the debates and proposals have touched
upon the delimitation of the continental shelf and, to the extent that
they do, they will be reviewed briefly. The most comprehensive pro-
posal presented thus far is that of the United States and special
attention will be devoted to it. The present section will be divided
as follows: (a) U.N. Sea-bed activities; (b) U.S. draft convention
and (c) Urgency and perspectives of a re-definition.
a. U.N. Sea-Bed Activities
The Pardo proposal was well received by the General Assembly
and, on December 18, 1967, the Assembly decided “to establish an
4( The same holds true for individuals and associations. Among those who
suggest a narrow shelf, see the following: L. F. E. Goldie (200 m.) in Deep-Sea
Mining, Report of Fifty-Third Conference of the I.L.A., (1968), at p. 206; L.
Henkin (200 m. plus a buffer zone) in Law for the Sea’s Mineral Resources,
(1967), at p. 105; R. Young (300 m. or 100 miles) in Panel: Whose Is the Bed
of the Sea, Proceedings of the Amer. Soc. of Int’l Law, (1968), at p. 233; Senator
Pell (550 m. or 50 miles) in S. Res. 33, 115, Congressional Record (21 Jan. 1969),
at p. 1330; J. Andrassy (200 m. or 30 miles plus a buffer zone) in his book
International Law and the Resources of the Sea, (1970), at pp. 118-119; the
Commission to Study the Organization of Peace, presided by Louis Sohn
(200 m. or 50 miles) in The United Nations and the Bed of the Sea, (March
1969), at p. 24; and the World Peace Through Law Center (200 m.) in Revised
Draft Treaty Governing the Exploration and Exploitation of the Ocean Bed
(1971), Pamphlet Series No. 14, (Geneva 1971).
Among those in favour of wide shelf, see the National Petroleum Council, L. W.
Findlay and 0. L. Stone who all suggest that the coastal State has jurisdiction
already as far as and including part of the continental rise: op. cit., n. 43.
47 For an excellent discussion of the advantages and disadvantages of these
criteria, see Lewis M. Alexander, Alternative Regimes for the Continental Shelf,
a paper prepared for Pacem in Maribus, Preparatory Conference on the Legal
Framework and Continental Shelf, University of Rhode Island, January 30 to
February 1, 1970. See also: Statement of Lewis M. Alexander, in Hearings
before
the Special Subcommittee on Outer Continental Shelf, Part 2,
(Washington 1970), at pp. 483-490.
No. 4]
THE CONTINENTAL SHELF REDEFINITION
Ad Hoc Committee to study the peaceful uses of the sea-bed and the
ocean floor beyond the limits of national jurisdiction”.4 At its Rio
de Janiero meeting of August 30 1968, the Committee reached an
agreement on certain basic principles, two of which are relevant
here: 1. there is an area of the sea-bed, ocean floor and sub-soil
beyond the limits of national jurisdiction, and 2. there should be a
precise boundary for the area.49
In November of the same year, a Standing Committee of 42
members was established to elaborate principles governing the
eventual exploitation of natural resources beyond the limits of
national jurisdiction. The Committee’s membership has now reached
91 and its mandate covers not only the question of the sea-bed but
all of the law of the sea issues, so that it has in fact become, and is
often referred to, as the Preparatory Committee for the Third Law
of the Sea Conference. This Conference is scheduled to be held in
1973, at which time a decision on the basic question of limits should
be reached. In the meantime, the General Assembly has adopted a
Declaration of Principles in December 1970 80 and the Sea-bed Com-
mittee has gone ahead with its work.
The Declaration of Principles, adopted by the General Assembly
on December 17, 1970, by a vote of 108 in favour, none against, with
14 abstentions, represents the most tangible accomplishment of the
United Nations on the whole question of revising the Law of the Sea,
in the light of technological developments and a proper balance
between the interests of the members of the international community
taken collectively and those of its members taken individually,
particularly the developing countries. The principles themselves
relate only to the area beyond the limits of national jurisdiction and
do not cover the delimitation of that area, but they presume that
there is such an area. Indeed, the Preamble of the Declaration affirms
that “there is an area of the sea-bed and the ocean floor, and the
subsoil thereof, beyond the limits of national jurisdiction, the precise
limits of which are yet to be determined”. 51
Using these fifteen principles as guidelines, the Sea-bed Com-
mittee, divided into three sub-committees since 1971, proceeded with
48Resolution 2172 (XXII), 18 December, 1967.
49Report of the Ad Hoc Committee to Study the Peaceful Uses of the Sea-
Bed and the Ocean Floor Beyond the Limits of National Jurisdiction, U.N.
Doe. A/7230 (1968).
UOResolution 2749 (XXV), U.N. Doc. A/C.1/544, reproduced
in (1971), 9
Int’l Legal Materials 220 and (1971), Dept. State Bulletin 155.
51 Id.
McGILL LAW JOURNAL
(‘Vol. is
its 3-point mandate to prepare draft treaty articles on the following:
1. the legal regime and machinery governing the international area
beyond the limits of national jurisdiction, 2. the subjects and issues
to be discussed at the Third Law of the Sea Conference, the continen-
tal shelf being specifically mentioned, and 3. the preservation of the
marine environment. As for the question of limits, an understanding
was reached in 1971 that “the matter of recommendations concer-
ning the precise definition of the area (beyond the limits of national
jurisdiction) is to be regarded as a controversial issue on which
the Committee would pronounce”.52 It was further agreed that:
While each Sub-Committee will have the right to discuss and record its
conclusions on the question of limits so far as it is relevant to the subjects
allocated to it, the main Committee will not reach a decision on the final
recommendation with regard to limits until the recommendations of
Sub-Committee II on the precise definition of the area have been re-
ceived …. 53
It should be pointed out, however, that Sub-Committee II took so
long to agree on a list of issues that it had little time left for debate
on substance and did not deal with the re-definition of the continen-
tal shelf. It was rather in Plenary or in Sub-Committee I, when
dealing with the legal regime and machinery of the international
area, that states either presented specific proposals or touched upon
the question of limits in the course of debate. The main proposals
and suggestions which have been made in UN debates concerning
the delimitation of the sea-bed area of exclusive national jurisdic-
tion may be classified as follows: continental margin, 200 miles,
200 miles or 2,500 meters, 200 miles or 550 meters, 200 miles or 200
meters, 200 meters, 200 meters or 40 miles, 200 meters plus a
trusteeship zone over the continental slope and part of the rise. The
latter proposal is that of the United States and is part of a compre-
hensive draft convention on the international sea-bed area. It is the
most detailed proposal presented so far in the Committee and
deserves to be examined separately. It becomes all the more im-
portant within a study of Arctic sea-bed delimitation that it is the
only such proposal presented by an Arctic state.
5 2 Report of the Committee on the Peaceful Uses of the Sea-Bed and the
Ocean Floor Beyond the Limits of National Jurisdiction G.A. Official Records:
26th session, Sup. No. 21 (A/8421), (1971), at p. 5.
53 Ibid., at p. 8.
No. 4]
THE CONTINENTAL SHELF REDEFINITION
b. The U.S. Draft Convention
The U.S. draft convention, proposing a continental shelf limited
to 200 meters plus a trusteeship zone the slope and part of the
rise, is based essentially upon a study made by the President’s Com-
mission on Marine Science (the Stratton Commission) completed
in 1969. It disregards the recommendation made the previous year
by the National Petroleum Council which had interpreted the 1958
Continental Shelf Convention as giving coastal states exclusive juris-
diction over the natural resources of the continental margin.
Stratton Commission: The President’s Commission made an exten-
sive study of the new legal-political framework which should govern
the exploration and exploitation of mineral resources underlying the
high seas and recommended the adoption of a 200-meter isobath or
50 mile limit, whichever is the greater. The recommandation to the
President reads as follows:
The continental shelf of each coastal State, for purposes of the Convention
on the Continental Shelf, shall be redefined so that its seaward limit is
fixed at the 200 meter (656 feet) isobath or 50 nautical miles from the
baselines used for measuring the breadth of its territorial sea, whichever
alternative gives the coastal State the greater area for permanent, exclu-
sive mineral resources exploration and exploitation.5 4
A second recommendation made by the President’s Commission
is to create an intermediate zone beyond the continental shelf as
newly defined as far as the 2,500 meter (8,200 feet) isobath or 100
nautical miles from the baselines of the territorial sea, whichever
gives the greater area. Only the coastal state or its licensees would
be authorized to explore and exploit the mineral resources within
that zone. 5 Beyond that, the Commission recommends the establish-
ment of an international regime the details of which are to be defined
later. The Commission’s recommendations were followed by a formal
oceans policy statement by President Nixon.
Nixon proposal: On may 23, 1970, President Nixon made a formal
announcement of the United States Oceans policy. “At issue,” he
said, “is whether the oceans will be used rationally and equitably and
for the benefit of mankind or whether they will become an area of
unrestrained exploitation and conflicting jurisdictional claims in
54 Commission on Marine Science, Engineering and Resources, Vol. 3, Marine
Resources and Legal-Political Arrangements for Their Development, (1969),
at VIII-5.
55 Id.
McGILL LAW JOURNAL
[Vol. 18
which event the most advanced States will be losers.” 56 The essential
operative part of the declaration reads as follows:
Therefore, I am today proposing that all nations adopt as soon as
possible a treaty under which they would renounce all national claims
over the natural resources of the sea-bed beyond the point where the
high seas reach a depth of 200 metres (218.8 yards), and would agree to
regard these resources as the common heritage of mankind.57
The proposal then goes on to provide for an international regime,
with a trusteeship zone outside the continental shelf as redefined.
The President’s announcement was transmitted to the Chairman of
the U.N. Sea-bed Committee and it specified that the United States
would introduce specific proposals at the next meeting of the Com-
mittee to implement the stated objectives.
At a hearing before the Special Subcommittee on outer conti-
nental shelf the following week, the Under Secretary of State explain-
ed why the United States had opted for a narrow shelf. He stated in
particular: “For the United States to propose a concept of broad
extension of national jurisdictions would have indirect, but serious,
national security implications, and would impede the freedom of
scientific research and other uses of the high seas.”r58 He also un-
derlined that a 200-meter limit is the only figure stated in the
Convention and added that “(i)ts choice was also dictated by the
difficulties involved in interpreting the adjacency and exploitability
criteria of the Continental Shelf Convention.”5 The proposed Con-
vention was then formally introduced in the Sea-bed Committee.
Draft U.S. Convention: On August 3, 1970, the United States delega-
tion submitted a Draft United Nations Convention on the Interna-
tional Seabed Area 0o as a working paper for discussion purposes in
the U.N. Seabed Committee. This draft convention incorporates the
Nixon Proposal that the continental shelf would end at the 200-
meter isobath with a maximum baseline of 60 nautical miles. The
proposal provides also for an international trusteeship area compos-
56 Statement by the U.S. President on Oceans Policy, U.N. Doc. A/AC 138/22
(25 May 1970), reproduced in 9 Int’l Legal Materials 806, at p. 807.
57 Id.
5s8 Clarifications of Presidential Proposal on Oceans, reproduced from U.S.
Dept. of State Press Release No. 162 (May 27, 1970), in (1970), 9 Int’l Legal
Materials 821, at pp. 824-825.
59 Ibid., at p. 826.
60 See: U.N. Doc. A/AC.138/25 (3 August 1970), reproduced in (1970), 9 Int’l
Legal Materials at pp. 1046-1080 and in the Report of the Committee on the
Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of
National Jurisdiction, U.N. Doc. Sup. No. 21 (A/8021)
(1970), at pp. 130-176.
No. 4]
THE CONTINENTAL SHELF REDEFINITION
ed of the continental slope and part of the rise. The part of the
rise is defined for the moment as extending to “a line, beyond the
continental slope.., where the downward inclination of the surface
of the seabed declines to a gradient of 1:
It is stated in a
footnote that “the precise gradient should be determined by tech-
nical experts, taking into account, among other factors, ease of
determination, the need to avoid dual administration of single
mineral deposits, and the avoidance of including excessively large
areas in the International Trusteeship Area”. 26
It is still not clear,
therefore, what is the exact portion of the rise which will be included
in the trusteeship zone.
Reaction to the U.S. Proposal: The U.S. proposal has met with opposi-
tion both in the United States and in the Sea-bed Committee.
.
In the United States, the Senate’s Special Sub-committee on Outer
Continental Shelf objected that “(t)he offer to renounce our
sovereign rights beyond the 200-meter isobath could cast a cloud on
our present title to the resources of our continental margin”‘
and
stated that it would press for the incorporation of its caveats in
subsequent revisions of the U.S. proposal.
In the Sea-bed Committee, the reaction to the U.S. draft conven-
tion has been mixed. States, like Canada, that have a large continen-
tal margin are very reluctant to accept the 200-meter isobath as
representing the fixed limit of the continental shelf. It is pointed
out that, under the U.S. proposal, the United States itself would
retain nearly all of its physical shelf and so would the U.S.S.R., since
their shelf break is generally at depths shallower than 200 meters0 5
On the other hand, the other three Arctic states would lose conside-
rably. Canada, in particular, would lose about 18% of its physical
shelf, 6 mainly because the break of most of its Arctic shelf occurs at
depth beyond 200 meters and reaching as far as 650 meters before
the true slope begins. Norway and Denmark would also lose a
considerable portion of their Arctic shelf to the trusteeship zone,
since the shelf-break off Greenland and Spitzbergen occurs at greater
depths than 200 meters. 7
61U.N. Doc. A/AC.138/25, (3 August 1970), at p. 7.
62M.
63Report by the Special Subcommittee on Outer Continental Shelf to the
Committee on Interior and Insular Affairs (21 Dec. 1970), at p. 29.
64Ibid., at p. 33.
65J .A. Beesley, Exploration and Exploitation of the Seabed, World Peace
Through Law Conference, (Belgrade, 21 July 1971), at p. 10.
60 Ibid., at p. 11.
67 Id.
McGILL LAW JOURNAL
[Vol. 18
In order to help solve the problem of redefinition of the conti-
nental shelf and to expedite matters generally in sea-bed activities,
Canada made a three-point proposal in March 1971. The three points
may be summarized as follows: 1. that a minimum non-contentious
area of the international sea-bed region be determined quickly by
having all states define their continental shelf claims; 2. that a
transitional international machinery be established to regulate ex-
ploration and exploitation in this minimum non-contentious inter-
national area and 3. that coastal states agree to make voluntary
contributions to an international development fund of a fixed pe-
centage of their revenues from off-shore exploitation in the area
within their national jurisdiction.
The proposal was repeated at the Belgrade Conference of World
Peace Through Law in July 1971 by Canada’s legal adviser, for the
Department of External Affairs, Mr. Alan Beesley, who explained
with respect to the interim redefinition of the shelf that:
If a state did not have a clear idea as to where its interests lie, then it
could specify the maximum limit beyond which it would never claim in
any event. The effect of this definition of national claims would be that.
as of a given date, the international community would be provided with
a definition of the minimum non-contentious area of the seabed beyond
national jurisdiction.68
Mr. Beesley added that this would ensure that a very large percentage
would definitely be used for the benefit of mankind and it would
permit the simultaneous establishment of an international machinery
to manage the development of the non-contentious area. 9
The developing countries also have considerable difficulty in
accepting the Nixon proposal mainly because of the fact that the 200-
meter limit of the continental shelf is coupled with a trusteeship
zone within which the coastal state exercices a considerable degree
of jurisdiction. On this point, Kuwait’s position is probably fairly
representative and its statement of March 14, 1972 reads as follows:
The developing countries also had grave misgivings about the creation of
a trusteeship zone in which coastal States would be entitled to exercice
additional rights and privileges. The area lying beyond the limits of na-
tional jurisdiction should be as large as possible and should not be dimi-
nished by a trusteeship zone which would give preference to one group of
States at the expense of the international community. Furthermore, the
creation of such a zone would be contrary to the concept of the common
heritage of mankind. 70
68 Ibid., at p. 25.
69 Ibid., at pp. 25-26.
70 A/AC.138/SC.I/SR. 38 (16 March 1972), at pp. 4 and 5.
No. 4]
THE CONTINENTAL SHELF REDEFINITION
c. Urgency and Perspectives of a Redefinition
Urgency: Progress toward a redefinition of the continental shelf
has been slow thus far. Indeed, the solution to this most fundamental
question seems to have been postponed until the Third Law of the
Sea Conference. This does not mean, however, that there is no urgen-
cy for such a redefinition. On the contrary, there exist definite indi-
cations that the matter is a condition precedent for the normal and
peaceful development of sea-bed activities. One such indication is
the Moratorium Resolution adopted by the General Assembly on
December 15, 1969. The resolution in question imposes a moratorium
on all exploitation of the deep sea-bed until the question of a regime
for its exploitation is settled. It declares:
that, pending the establishment of the aforementioned
regime:
(a) States, persons, physical or juridical, are bound to refrain from all
activities of exploitation of the resources of the area of the sea-bed
and ocean floor, and the subsoil thereof, beyond the limits of national
jurisdiction;
international
(b) No claim to any part of that area or its resources shall be recognized. 71
Commanding a majority in the General Assembly, the developing
countries were able to force through this resolution by a vote of
62 to 28, with 28 abstentions and 9 being absent. Only three deve-
loped countries (Finland, Sweden, Yugoslavia) supported the resolu-
tion. Although any such resolution by the General Assembly can only
have the force of recommendation, it cannot be disregarded and,
indeed, caused some concern to the Chairman of the U.S. Senate
Subcommittee on the Outer Continental Shelf. One of the questions
on which he asked the opinion of the Legal Adviser of the State
Department was “what position does the State Department anticipate
toward U.S. nationals who express an intention to exploit minerals
from the deep seabed, such as manganese nodules?”7 2 The opinion
given was that if that event materialized “prior to the establishment
of an internationally agreed regime, we would seek to assure that
their activities are conducted in accordance with relevant principles
of international law, including the freedom of the seas and that the
integrity of their investment receives due protection in any sub-
sequent international agreement”.73
Regardless of the fact that General Assembly resolutions on this
subject are not legally binding decisions for the member states, the
7’ Resolution D, A/RES/2574 (XXIV), (15 January 1970).
72See: Letter from Lee Metcalf to John R. Stevenson, dated 23 December
1969, and reproduced in (1970), 9 Int’l Leg. Materials, at p. 831.
73 Ibid., at p. 832.
McGILL LAW JOURNAL
[Vol. 18
United States recognized that it “is required to give good faith
consideration to the Resolution in determining its policites”. 4 In-
deed, it must have felt that there was considerable urgency in having
agreement reached on the delimitation of the continental shelf and
the legal regime beyond, since the Nixon Proposal was made less
than six months after the adoption of the Moratorium Resolution. It
should also be noted that the President’s proposal also calls on other
nations to join the United States in an interim policy under which
all permits for exploration and exploitation beyond 200 metres
would be issued “subject to the international regime to be agreed
upon”.7 The proposal further provides that “a substantial portion
of the revenues derived by a State from exploitation beyond 200
metres during this interim period should be turned over to an
appropriate international development agency for assistance to de-
veloping countries”. 76 It is obvious that the main purpose of the
interim period proposal is to ensure that exploration and exploita-
tion of the deep sea-bed continues, and to give entrepreneurs the
necessary protection for their investments during that period.
Another indication of the urgency of reaching agreement on the
limits of national jurisdiction is found in the speeches of some
of the developing countries at the 1972 March session of the Sea-bed
Committee in New York, alleging that a certain number of western
countries, either directly or through their national corporations, had
already begun the exploitation of the international sea-bed area. 77
Kuwait in particular made the following statement:
A major problem yet to be solved was that of defining the limits of the
area beyond national jurisdiction. The time had come to tackle that
problem with courage, realism and in a manner that would do justice to
the concept of common heritage.
Many, if not all, of the developing countries were seriously concerned
about the course events were taking. They would appreciate receiving
formal assurances from all States connected with such activities that no
commercial exploitation of the resources of the sea-bed and ocean floor
beyond the limits of national jurisdiction would be undertaken before the
establishment of the international regime. 8
Not having received the assurances requested, Kuwait introduced
a draft decision at the end of the March session, at a plenary meeting
74 Id.
75 Id.
76 Id.
77 See in particular Chile’s statement of March 9, 1972, in A/AC.138/SC.I/SR.
35, (13 March 1972), at pp. 13 and 14, as well as Kuwait’s intervention of March
16, 1972, in A/AC.138/SC.I/S.R.38, (16 March 1972), at pp. 4 and 5.
7SA/AC.138/SC.I/S.R.38,
(16 March 1972), at p. 5.
No. 4]
THE CONTINENTAL SHELF REDEFINITION
of the Sea-bed Committee, the operative part of which reads as
follows:
Decides also that all arrangements made or to be made for the commer-
cial exploitation of the resources of the area prior to the establishment
of the regime shall have no legal validity and shall not form the legal basis
for any claims with respect to any part of the area or its resources 9
Since no notice of the draft resolution had been given, the Chairman
ruled that there could be no discussion of the document but he did
say that it could be discussed at the next session of the Committee
to be held in Geneva in July-August 1972. This ruling, however, did
not prevent the delegations of Algeria, Cameroons, Chile, China,
India, Libyan Arab Republic, Mauritania, Nigeria, Pakistan, Peru
and Yemen to express their solidarity with the delegation of Kuwait.
In addition and on the very next day, a Note was sent by the Secre-
tary-General to the members of the Sea-bed Committee asking them
to provide relevant information pertaining to deep-sea mining acti-
vities carried on by their nationals before April 30, 1972. The purpose
of this request by the Secretary-General is undoubtedly to enable
the Secretariat to complete the Progress Report which the Chairman
of Sub-Committee I had mentioned previously when he asked states
to provide the fullest information on their deep-sea activities.
Regardless of the view which one takes as to the binding nature
of the 1969 Moratorium Resolution adopted by the General Assembly
and irrespective of the outcome of the Kuwait resolution at the
1972 July-August session of the Sea-bed Committee, the urgency of
reaching agreement on the basic issue of limits is clearly evident. The
question which remains is: what are the perspective for reaching
such an agreement.
Perspectives: The prospects of reaching an early agreement on a
redefinition of the continental shelf do not appear good at the mo-
ment. The reason simply is that there are very real difficulties in
trying to define limits of exclusive national jurisdiction in such a
way as to protect adequately the interests of states with a wide shelf
and those of states with a narrow one. The 200 meter isobath is
out of the question as an adequate solution: it is neither representa-
tive of the average nor of the maximum depth of the shelf break.
The world average shelf depth is estimated to be about 132 meters
and the shelf break occurs at depths up to 650 meters in the Arctic.
Except for the United States, such a criterion would be unsuitable
to all of the Arctic states since a considerable proportion of their
shelf breaks at depths greater than 200 meters. This is the case for
70 See: A/AC.138/L.II.
McGILL LAW JOURNAL
[Vol. 18
about 35% of Canada’s Arctic shelf and about 25% for that of the
U.S.S.R. The corresponding portion of the shelf off Spitzbergen and
Greenland is of similar magnitude. The continental margin would
likewise seem unacceptable: it includes features (slope and rise)
which are beyond the real shelf and, in addition, would give very
little to states with a narrow shelf, the entire margins of such shelves
being also usually narrow. As for the Arctic states, all of their conti-
nental margins are wide and such a criterion would be most favour-
able to them but it remains unsatisfactory for the great majority of
the other states.
The 200-mile proposal, espoused by Pardo of Malta and incor-
porated in a draft ocean space treaty, appears so far to have gained
the greatest number of adherents in the U.N. Sea-bed Committee.
This would give a uniform breath of exclusive national jurisdiction
to all coastal states, except those that are shelf-locked, and would
generally benefit Latin American and African countries, as well as
a few Asian ones. Consequently, if one can speak of a trend emerging
from the debates in the Sea-bed Committee, it would seem to be
toward accepting the 200-mile proposal. The concepts of economic
zone and patrimonial sea advanced by certain African and Latin
American countries are quite similar to Pardo’s proposal, and those
countries would probably be willing to accept it. The 200-mile pro-
posal has the advantage of not only providing a limit which is easily
determined but it goes a long way to accommodate the generality of
states. In his speech of March 23, 1971, in the Sea-bed Committee,
Ambassador Pardo reviewed the various criteria in the light of their
general acceptability and the practical difficulties of application. He
came to the conclusion that a fixed distance of 200 miles was the
most feasible criterion to use. He summarized his conclusion in the
following terms:
Taking into account the general interest of the international community
to keep the widest possible area of ocean space open to the non-discri-
minatory access of all, and taking into account the fact that some coastal
States have already proclaimed that their jurisdiction extends to 200 miles
from their coasts, my delegation has come to the reluctant conclusion that,
to avoid prolonged debate and haggling, it has become necessary to estab-
lish a distance of 200 miles from the nearest coast as the outer limit of
coastal State jurisdiction in ocean space. … Three or four States may
have legitimate claims to an ocean space juridiction exceeding 200 miles
from their coasts which are founded on the depth criterion of the 1958
Geneva Convention on the Continental Shelf. I believe that, if moderation
is shown, the interests of these States can be fully satisfied.0
80 See: Statement delivered by Dr. Arvid Pardo, Permanent representative of
Malta to the United Nations in the Main Committee (typewritten copy circu-
lated at the time of delivery), (23 March 1971), at p. 65.
No. 4]
THE CONTINENTAL SHELF REDEFINITION
The few states in question include Canada, the USSR and the United
States (Alaska); they would lose part of their shelf or margin.
Canada, for instance, would lose the eastern portion of the Grand
Bank and the Flemish Cap, all of which it presently claims as a
natural extension of its land-mass. Theoretically, it is always possible
that some proviso be attached to the 200-mile criterion so as
to include the wider shelves claimed by those few states. Prac-
tically, it is doubtful that the other states would agree to such a
solution, considering that those few states would already benefit
to the maximum from the 200-mile strip. Consequently, it would
seem that the straight 200-mile criterion offers the best chance of
agreement.
Applying the 200-mile criterion to the Arctic sea-bed area, the
result should be quite acceptable to the Arctic states. Indeed, this
criterion compares very favourably with the continental margin.
Three states (Norway, Denmark and Canada) would keep all of
their continental margin. The U.S.S.R. would lose only a small
portion of her margin off the Chukchi and East Siberian Seas, but it
would gain a considerable area beyond the continental margin off
Severnaya Zemlya and Franz Josef Land. The United States would
lose substantial portions of two plateaus (Chuckchi and Northwind)
located at the western boundary of its margin west of Point Barrow,
Alaska, but would gain a considerable area lying east of Point
Barrow. This area offers the important advantages of being much
more accessible from the coast and of presenting a very uniform
surface.
As for the international or central polar area beyond the 200-
mile limit of national jurisdiction, it would come, in principle, under
the legal regime and machinery governing the international area for
all other oceans. However, since the Artic Ocean is virtually en-
closed by the land-mass of the five Arctic states, the exploitation of
the international area could not very well be done without their
close cooperation and participation. Furthermore, those states in-
clude the two big Powers possessing the most advanced technology
for the exploration and exploitation of the sea-bed. In these circums-
tances, an agreement could be made with the International Seabed
Authority whereby the Arctic states would exploit the central North
polar area. The terms of this agreement, of a semi-trusteeship
nature, would have to insure an equitable sharing of the benefits by
the international community, considering in particular the needs of
the developing countries. This concept of weighted equitable sharing
is the basic principle underlying the exploitation of all international
seabed areas.
