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The Lateral Boundaries of the Continental Shelf and the Judgment of the International Court of Justice in the North Sea Continental Shelf Cases

Published online by Cambridge University Press:  28 March 2017

Etienne Grisel
Etienne Grisel*
Affiliation:
LL.M. (Harvard)
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Extract

A rule of customary international law of recent origin has conferred sovereign rights over the continental shelf to individual states for the limited purposes of exploration and exploitation. The attribution of such exclusive jurisdiction required the delimitation of boundaries between the submarine areas appertaining to various littoral states. The importance of such partition of the seabed and subsoil is self-evident, but two points do call for comment. First, since the shelf may be considerably extended in the future according to the criterion of exploitability, the method now adopted will have a constantly growing significance. Second, the acquisition of the sea bottom by coastal nations has created inequalities between them, depending on their relative degree of technical development as well as on their geographical circumstances. The drawing of boundaries separating their respective shelves can aggravate or diminish these inequalities.

Type
Research Article
Information
American Journal of International Law , Volume 64 , Issue 3 , July 1970 , pp. 562 - 593
Copyright
Copyright © American Society of International Law 1970

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References

1 As at Dec. 31, 1967, 46 states had signed the convention, and 37 had ratified it. Multilateral Treaties, List of Signatures, Ratifications, Accessions, etc., as at 31 December 1967, U.N. Doc. St./Leg./Ser.D/l at 331. Among the principal Powers presently parties to the convention are France, the Soviet Union, the United Kingdom and the United States.

2 F. Münch, “Die Anrufung des Internationalen Gerichtshofes durch die Bundesrepublik Deutschland und ihre Nachbarn in Fragen des Festlandsockels in der Nordsee,” 27 Zeitschrift für ausländisches öffentliches Recht u. Völkerrecht 725 (1967).

3 Judgment of the International Court of Justice of Feb. 20, 1969, in the North Sea Continental Shelf Cases, [1969] I.C.J. Rep. 14-18.

4 Ibid., at 22.

5 Ibid., at 33

6 Ibid., at 47.

7 U.N. Doc. A/CN.4/32 at 57. See F. Vallat, “The Continental Shelf,” 23 Brit. Yr. Bk. Int. Law 333, 334 (1946).

8 10 Fed. Reg. 12303 (1945); 4 Whiteman, Digest of International Law 752.

9 U.N. Doc. A/CN.4/32 at 108 (1950).

10 [1950] I.L.C. Yearbook (I) 234, par. 56.

11 Ibid., at 384, par. 199.

12 U.N. Doc. A/CN.4/42 at 70 (1951).

13 [1951] I.L.C. Yearbook (I) 287, par. 122.

14 Ibid., at 286, pars. 107, 114.

15 Ibid., at 289, par. 16.

16 Ibid., at 288, par. 5.

17 Ibid., at 291, par. 33.

18 [1951] I.L.C. Yearbook (II) 143.

19 U. N. Doc. A/CN.4/60 at 68, 70, 72 (1953).

20 Young, R., “The International Law Commission and the Continental Shelf,” 46 A. J. I. L. 123, 126 (1952)Google Scholar. See also De Azcárraga, quoted in U.N. Doc. A/CN.4/60 at 74 (1953).

21 U.N. Doc. A/CN.4/60 at 129 (1953).

22 [1953] I.L.C. Yearbook (I) 106, par. 37.

23 The reference to arbitration in Art. 7 was deleted later because the draft articles contained a general clause relating to compulsory arbitration.

24 [1953] I.L.C. Yearbook (I) 107, par. 43.

25 Ibid., at 128, par. 41.

26 Ibid., at 133, par. 44. Lauterpacht, ibid., at 131, par. 9, had strongly opposed the solution advocated by his Soviet colleague.

27 [1953] I.L.C. Yearbook (II) 213.

28 U.N. Doc. A/Conf. 13/42 at 10, par. 14.

29 Ibid., at 21, par. 30.

30 Ibid., at 92, par. 15.

31 Ibid., at 98, par. 35.

32 [1969] I.C.J. Rep. 37.

33 See note 20 above.

34 See note 16 above.

35 Whether these reasons were to be considered as overriding is a different question, which will be discussed in the second part of the present article. See pp. 589-590 below.

36 This issue should of course be carefully distinguished from the problem which arises when one or several of the states concerned are not bound by Art. 6, par. 2, of the Continental Shelf Convention. In this case, agreement plays a more significant r61e, since no substantive rule governs the matter. See p. 588 below.

37 A. Cukwurah, The Settlement of Boundary Disputes in International Law 7 (1967); Gutteridge, J., “The 1958 Geneva Convention on the Continental Shelf,” 35 Brit. Yr. Bk. Int. Law 102, 120 (1959)Google Scholar; idem, “The Regime of the Continental Shelf,” 44 Grotius Society Transactions 77, 88 (1958-1959); Oda, S., “Proposals for Revising the Convention on the Continental Shelf,” 7 Col. J. Transnational Law 1, 24 (1968)Google Scholar; Shalowitz, A., Shore and Sea Boundaries 231 (1962)Google Scholar; Young, R., “The Geneva Convention on the Continental Shelf: A First Impression,” 52 A. J. I. L. 733, 737 (1958)Google Scholar.

38 [1969] I.C.J. Rep. 28.

39 Contra, Padwa, D., “Submarine Boundaries,” 9 Int. and Comp. Law Q. 628, 637 (1960)Google Scholar.

40 See p. 582 below.

41 G. Abi-Saab, Les exceptions prélirninaires dans la procédure de la Cour Internationale 125 (1967); E. Grisel, Les exceptions d'incompétence et d'irrecevabilité dans la procédure de la Cour Internationale de Justice 88, 128, note 27 (1968).

42 [1969] I.C.J. Rep. 47. See the dissenting opinions of Judges Morelli, at 206, and Lachs, at 220. See pp. 564 above and 588 below.

43 See p. 565 above.

44 [1950] I.L.C. Yearbook (I) 233, pars. 41-42.

45 U.N. Doc. A/CN.4/42 at 70 (1951). See p. 586 below.

46 See p. 566 above.

47 [1951] I.L.C. Yearbook (I) 286, pars. 104-106, 111.

48 Ibid., at 288, par. 3.

49 Ibid., at 267, par. 19. Art. 1 of the Convention on the Continental Shelf reads: ”… 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….” (Emphasis supplied.)

50 Ibid., at 288, par. 4.

51 Ibid., at 402, par. 92.

52 Boggs, S. W., “Delimitation of Seaward Areas under National Jurisdiction,” 45 A.J.I.L. 240, 256 (1951).Google Scholar

53 [1952] I.L.C. Yearbook (I) 180, par. 2.

54 Ibid., at 189, par. 46. See also the statements of Córdova, at 181, par. 12, and at 183, par. 32; Alfaro, at 182, par. 17; Arnado, at 181, par. 11; El Khouri, at 182, par. 14.

55 Ibid., at 144, par. 24; at 180, par. 4.

56 Ibid., at 185, par. 63; [1952] I.L.C. Yearbook (II) 68, par. 39.

57 U.N. Doc. A/CN.4/60 at 12 (1953); U.N. Doc. A/CN.4/71 (1953).

58 U.N. Doc. A/CN.4/61/Add. Annex 7 (1953).

59 See note 22 above.

60 [1953] I.L.C. Yearbook (I) 134, par. 65.

61 Ibid., at 129, par. 55.

62 [1954] I.L.C. Yearbook (II) 158.

63 [1956] ibid. (II) 258, 264.

64 See pp. 564-565 above.

65 [1969] I.C.J. Rep. 34.

66 Ibid., at 36.

67 See pp. 574-575 below.

68 The International Court of Justice remarked in this respect, at 38: “Equally distinct in the opinion of the Court is the case of the lateral boundary between adjacent territorial waters to be drawn on an equidistance basis.“

69 [1969] I.C.J. Rep. 18. A. Shalowitz, note 37 above, at 231, writes: “This distinction between an equidistant line and a median line seems valid from a geometrical point of view, for a true median line presupposes a line that is in the middle. Theoretically, at least, a boundary line through the territorial sea between two adjacent States, while an equidistant line, is not a true median line.“

70 A third possibility would be to take account of the points on the straight baselines determined under Art. 4 of the Territorial Sea Convention. But that solution would meet difficulties where no such baselines are predetermined.

71 [1953] I.L.C. Yearbook (I) 125, par. 2.

72 Ibid., at 126, pars. 15, 17, 18.

73 Ibid., at 125, par. 5; at 127, par. 39.

74 Ibid., at 129, par. 52.

75 U.N. Doc. A/Conf. 13/42 at 93, par. 2 (1958).

76 [1951] I.C.J. Rep. 116.

77 D. Padwa, note 39 above, at 646; R. Young, note 37 above, at 737. As Young remarks, even though, as a rule, the same method is applied to the lateral boundaries of the territorial waters and of the continental shelf, and also the same baselines are taken into account, nonetheless the two frontiers, between each of these areas, will not necessarily tie up with one another. This problem is left unresolved by Art. 6.

78 [1953] I.L.C. Yearbook (I) 127, par. 33.

79 S. W. Boggs, note 52 above, at 256; A. Shalowitz, note 37 above, at 231, 235, note 60; E. Menzel, “Der Deutsche Festlandsockel in der Nordsee und seine rechtliche Ordnung,” 90 Archiv des Volkerrechts 1, 21 (1965).

80 Italy and Yugoslavia concluded an agreement on Jan. 8, 1968, dividing the whole bottom of the Adriatic Sea between them. See the separate opinion of Judge Ammoun in the North Sea cases, at 110.

81 [1969] I.C.J. Rep. 29, 36.

82 Ibid., at 20.

83 Ibid., at 24.

84 A. Cukwurah, note 37 above, at 72-73.

85 The line determined under the principle of equidistance is likely to be different depending on whether the points are computed on the bottom of the sea or on its surface, because the former has declivities, while the latter is plane.

86 [1969] I.C.J. Rep. 25.

87 Ibid., at 18-19.

88 Ibid., at 37-38.

89 Ibid., at 43.

90 F. Vallat, note 7 above, at 336.

91 See pp. 565-566 above

92 [1952] I.L.C. Yearbook (I) 181, par. 7.

93 Ibid., at 182, par. 17.

94 See note 22 above.

95 [1953] I.L.C. Yearbook (I) 130, par. 3; 131, par. 14.

96 Ibid., at 131, pars. 10, 15-17; at 132, par. 23.

97 [1956] I.L.C. Yearbook (II) 272, par. 7.

98 Ibid., at 300, par. 1.

99 U.N. Doc. A/Conf. 13/39 at 187, pars. 8, 12; at 189, par. 35 (1958).

100 U.N. Doc. A/Conf. 13/42 at 91, par. 4 (1958).

101 Ibid., at 21, par. 29; at 22, par. 35.

102 Ibid., at 98, par. 38.

103 Ibid., par. 39. See U.N. Doc. A/Conf. 13/38 at 15, par. 6 (1958).

104 [1969] I.C.J. Rep. 21.

105 Ibid., at 37, 47.

106 Most of the judges who wrote individual opinions were in disagreement on the question as to whether the “special circumstances” clause merely appends an exception to the rule or rather is an “alternative of equal rank.” For the former view, see the dissenting opinions of Judges Tanaka, at 187, Lachs, at 221, 239, and Sørensen, at 254. For the latter construction, see the separate opinion of Judge Padilla Nervo, at 93, and the dissenting opinion of Judge Morelli, at 207, 209.

107 J. Gutteridge, note 37 above, at 120; S. Oda, note 37 above, at 25; G. Scelle, “Plateau continental et droit international,” 59 Revue Générale de Droit International Public 6, 17 (1955).

108 [1953] I.L.C. Yearbook (II) 216, par. 82.

109 [1969] I.C.J. Rep. 50.

110 Judge Padilla Nervo specified in his separate opinion, at 91: “It appears … that the case of the North Sea … could be deemed a case in which special circumstances exist.” Judges Morelli, at 210, and Ammoun, at 151, reached the same conclusion.

111 S. Oda, note 37 above, at 27.

112 U.N. Doc. A/Conf. 13/42 at 92, par. 3 (1958).

113 S. W. Boggs, International Boundaries 181 (1940); J. Gutteridge, note 37 above, at 120; S. Jones, Boundary-Making 140 (1945); S. Oda, note 37 above, at 28.

114 S. W. Boggs, note 52 above, at 257; D. Padwa, note 39 above, at 647.

115 This factor was taken into account in the Grisbadarna case. Award of the Permanent Court of Arbitration of Oct. 23, 1909, XI Int. Arb. Awards 147, 161.

116 J. de Azcárraga y de Bustamante, La plataforma submarina y el derecho international 82 (1952); E. Sturm, Das Kontinentalschelf 141 (1957).

117 E. Menzel, note 79 above, at 23.

118 [1969] I.C.J. Rep. 21.

119 Ibid., at 23.

120 Ibid.

121 The Court was not aware of this, since it wrote, at 23: “Evidently any dispute about boundaries must involve that there is a disputed marginal or fringe area, to which both parties are laying claim, so that any delimitation of it which does not leave it wholly to one of the parties will in practice divide it between them in certain shares, or operate as if such a division had been made. But this does not mean that there has been an apportionment of something that previously consisted of an integral, still less an undivided whole.“

122 See p. 571 above.

123 Grisbadarna case, note 115 above, at 160; see also 4 A.J.I.L. 226 (1910).

124 U.N. Doc. A/CN.4/61/Add.l Annex 7 (1953).

125 [1954] I.L.C. Yearbook (II) 158.

126 [1952] ibid. (I) 181, pars. 7-

127 [19691 LC.J. Rep. 31-32.

128 Ibid., at 33-34.

129 Ibid., at 36.

130 Ibid., at 48.

131 Ibid.

132 Ibid., at 50-51.

133 This point is particularly emphasized in the separate opinion of Judge Jessup, at 83-84.

134 See p. 582 above.

135 See p. 577 above.

136 See the dissenting opinions of Judges Morelli, at 201, 215; Tanaka, at 196; Søfrensen, at 250, 257. S. Oda, note 37 above, at 25.

137 [1969] I.C.J. Rep. 45.

138 See pp. 566, 570, 583 above.

139 Judge Ammoun notes in his separate opinion, at 133, that there is a lacuna in international law which, according to him, has to be filled by a recourse to the principle of equity.

140 The Court wrote in this respect, at 51: “As the operation of delimiting is a matter of determining areas appertaining to different jurisdictions, it is a truism to say that the determination must be equitable; rather is the problem above all one of defining the means whereby the delimitation can be carried out in such a way as to be recognized as equitable.”

141 See p. 566 above.

142 [1969] I.C.J. Rep. 51.

143 Judge Koretsky notes in his dissenting opinion, at 168, that the “factors” enumerated by the Court are not principles of law, but, “rather, economico-political in nature.” See the dissenting opinion of Judge Morelli, at 215-216.

144 See p. 568 above.

145 [1969] I.C.J. Rep. 54.

146 Judge Koretsky remarks in his dissenting opinion, at 168, that this idea is contrary to the previous holding of the Court under which “its task in the present proceedings relates essentially to the delimitation and not the apportionment of the areas concerned or their division into converging factors.” See [1969] I.C.J. Rep. 23.

147 See pp. 566, 568 above.