Continental Shelf Pil.docx

INTRODUCTION

The continental shelf is a geological expression referring to the ledges that project from the continental land mass into the seas and which are covered with only a relatively shallow layer of water (some 150-200 metres) and which eventually fall away into the ocean depths (some thousands of metres deep). These ledges or shelves take up some 7 to 8 % of the total area of ocean and their extent varies considerably from place to place. The vital fact about the continental shelves is that they are rich in oil and gas resources and quite often are host to extensive fishing grounds. The width of the continental shelf varies considerably – it is not uncommon for an area to have virtually no shelf at all, particularly where the forward edge of an advancing oceanic plate dives beneath continental crust in an offshore subduction zone such as off the coast of Chile or the west coast of Sumatra. The largest shelf – the Siberian Shelf in the Arctic Ocean – stretches to 1,500 kilometers (930 mi) in width. The South China Sea lies over another extensive area of continental shelf, the Sunda Shelf, which joins Borneo, Sumatra, and Java to the Asian mainland. Other familiar bodies of water that overlie continental shelves are the North Seaand the Persian Gulf. The average width of continental shelves is about 80 km (50 mi). The depth of the shelf also varies, but is generally limited to water shallower than 150 m (490 ft). The slope of the shelf is usually quite low, on the order of 0.5°; vertical relief is also minimal, at less than 20 m (66 ft). Though the continental shelf is treated as a physiographic province of the ocean, it is not part of the deep ocean basin proper, but the flooded margins of the continent. Passive continental margins such as most of the Atlantic coasts have wide and shallow shelves, made of thick sedimentary wedges derived from long erosion of a neighboring continent. Active continental margins have narrow, relatively steep shelves, due to frequent earthquakes that move sediment to the deep sea.

The definition of the continental shelf and the criteria by which a coastal State may establish the outer limits of its continental shelf are set out in article 76 of the Convention. In addition, the Third United Nations Conference on the Law of the Sea (the "Conference") adopted on 29 August 1980 a "Statement of Understanding" which is contained in Annex II to the Final Act of the Conference.

The term "continental shelf" is used by geologists generally to mean that part of the continental margin which is between the shoreline and the shelf break or, where there is no noticeable slope, between the shoreline and the point where the depth of the superjacent water is approximately between 100 and 200 metres. However, this term is used in article 76 as a juridical term. According to the Convention, the continental shelf of a coastal State comprises the submerged prolongation of the land territory of the coastal State - the seabed and subsoil of the submarine areas that extend beyond its territorial sea to the outer edge of the continental margin, or to a distance of 200 nautical miles where the outer edge of the continental margin does not extend up to that distance. The continental margin consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof .

According to article 76, the coastal State may establish the outer limits of its juridical continental shelf wherever the continental margin extends beyond 200 nautical miles by establishing the foot of the continental slope, by meeting the requirements of article 76, paragraphs 4 - 7, of the Convention. The continental shelf is an undersea extension of a continent which can stretch for many miles out to sea in some cases. Many nations have asserted mineral and land rights to their associated continental shelves, since this region of the ocean is rich in natural resources such as marine life. Minerals on the continental shelf are also significantly easier to extract than minerals on the floor of the ocean, since the continental shelf is relatively shallow by comparison. By convention, many countries defend their continental shelves as territorial waters, since they are concerned about the exploitation of their natural resources.

There are actually several parts to the continental shelf. The first part is the shelf itself, which starts below the shoreline of a continent. The shelf slopes gently as it stretches towards the deeper part of the ocean, until it reaches a certain point and drops off sharply, causing the waters above to rapidly become much deeper. This drop is called the continental break, and it occurs uniformly at around 460 feet (140 meters) of depth. It has been theorized that the continental break may mark the former sea level of the world's oceans. After the continental break, the continental shelf takes a sharp downward turn, creating a geological feature called the continental slope. This feature transitions into the continental rise, a deposit of sediments which forms as a result of river and stream run off from the

neighbouring continent. Beyond the continental rise, one finds the ocean floor, along with a host of fascinating plant and animal life which remains largely unexplored due to the inaccessibility of the ocean floor.

In some instances, the continental shelf is very short, as is the case in subduction zones where one tectonic plate is being sucked below another. A well known example of a subduction zone can be found in the waters off the coast of Chile. In other cases, the continental shelf stretches for many miles out to sea. The feature is often visible from overhead, if the viewer looks for a marked change in the colour of the water which reflects a sudden change in depth.

A continental shelf is not necessarily flat. It may be marked with deep valleys and other geological features which may continue out to the abyssal plain, the deepest part of the ocean. The shelf is also covered in a thick layer of nutrient rich sediment which is deposited by rivers and streams. These nutrients support varied and diverse marine life including seaweeds, fish, and many microscopic organisms like din flagellates and other plankton.

THE TERRITORIAL WATERS, CONTINENTAL SHELF,

EXCLUSIVE

ECONOMIC ZONE AND OTHER MARITIME ZONES ACT, 1976

An Act to provide for certain matters relating to the territorial waters, continental shelf, exclusive economic zone and other maritime zones of India. Be it enacted by Parliament in the Twenty-seventh Year of the Republic of India as follows:1. (1) This Act may be called the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976. (2) Sections 5 and 7 shall come into force on such date or on such different dates as the Central Government may, by notification in the official Gazette, appoint; and the remaining provisions of this Act shall come into force at once.

2. In this Act, “Limit”, in relation to the territorial waters, the continental shelf, the exclusive economic zone or any other maritime zone of India, means the limit of such waters, shelf or zone with reference to the mainland of India as well as the individual or composite group or groups of islands constituting part of the territory of India.

3. (1) The sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the air space over, such waters. (2) The limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline. (3) Notwithstanding anything contained in sub-section (2), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the territorial waters.

(4) No notification shall be issued under sub-section (3) unless resolutions approving the issue of such notification are passed by both Houses of Parliament.

4. (1) Without prejudice to the provisions of any other law for the time being in force, all foreign ships (other than warships including submarines and other underwater vehicles) shall enjoy the right of innocent passage through the territorial waters. Explanation- For the purposes of this section, passage is innocent so long as it is not prejudicial to the peace, good order or security of India. (2) Foreign warships including submarines and other underwater vehicles may enter or pass through the territorial waters after giving prior notice to the Central Government: Provided that submarines and other underwater vehicles shall navigate on the surface and show their flag while passing through such waters. (3) The Central Government may, if satisfied that it is necessary so to do in the interests of the peace, good order or security of India or any part thereof, suspend, by notification in the Official Gazette, whether absolutely or subject to such exceptions and qualifications as may be specified in the notification, the entry of all or any class of foreign ships into such area of the territorial waters as may be specified in the notification.

5. (1) The contiguous zone of India (hereinafter referred to as the contiguous zone) is and area beyond and adjacent to the territorial waters and the limit of the contiguous zone is the line every point of which is at a distance of twenty-four nautical miles from the nearest point of the baseline referred to in sub-section (2) of section 3. (2) Notwithstanding anything contained in sub-section (1), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the contiguous zone.

(3) No notification shall be issued under sub-section (2) unless resolutions approving the issue of such notification are passed by both Houses of Parliament. (4) The Central Government may exercise such powers and take such measures in or in relation to the contiguous zone as it may consider necessary with respect to,(a) the security of India, and (b) immigrations sanitation, customs and other fiscal matters.

(5) The Central Government may, by notification in the Official Gazette,-

(a) extend with such restrictions and modifications as it thinks fit, any enactment, relating to any matter referred to in clause (a) or clause (b) of subsection (4), for the time being in force in India or any part thereof, to the contiguous zone, and (b) make such provisions as it may consider necessary in such notification for facilitating the enforcement of such enactment, and any enactment so extended shall have effect as if the contiguous zone is a part of the territory of India.

6. (1) The continental shelf of India (hereinafter referred to as the continental shelf) comprises the seabed and subsoil of the submarine areas that extend beyond the limit of its territorial waters throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of two hundred nautical miles from the baseline referred to in sub-section (2) of section 3 where the outer edge of the continental margin does not extend up to that distance. (2) India has, and always had, full and exclusive sovereign rights in respect of its continental shelf. (3) Without prejudice to the generality of the provisions of sub-section (2), the Union has in the continental shelf,(a) Sovereign rights for the purposes of exploration, exploitation, conservation and

management of all resources;

(b) exclusive rights and jurisdiction for the construction, maintenance or operation of artificial islands, off-shore terminals, installations and other structures and devices necessary for the exploration and exploitation of the resources of the continental shelf or for the convenience of shipping or for any other purpose; (c) exclusive jurisdiction to authorize, regulate and control scientific research; and (d) exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution. (4) No person (including a foreign Government) shall, expect under, and in accordance with, the terms of a licence or a letter of authority granted by the Central Government, explore the continental shelf or exploit its resources or carry out any search or excavation or conduct any research within the continental shelf o drill therein or construct, maintain or operate any artificial island, off-shore terminal, installation or other structure or device therein for any purpose whatsoever. (5) The Central Government may, by notification in the Official Gazette,(a) declare any area of the continental shelf and its superjacent waters to be a designated area; and (b) make such provisions as it may deem necessary with respect to,-

(i) the exploration, exploitation and protection of the resources of the continental shelf within such designated area; or (ii) the safety and protection of artificial islands, off-shore terminals, installations and other structures and devices in such designated area; or (iii) the protection of marine environment of such designated area; or (iv) customs and other fiscal matters in relation to such designated area.

Explanation- A notification issued under this sub-section may provide for the regulation of entry into and passage through the designated area of foreign ships by the establishment of fairways, sealanes, traffic separation schemes or any other mode of ensuring freedom of navigation which is not prejudicial to the interests of India. (6) The Central Government may, by notification in the Official Gazette,(a) extend with restrictions and modifications as it thinks fit, any enactment for the time being in force in India or any part thereof to the continental shelf or any part [including any designated area under sub-section (5)] thereof, and (b) make such provisions as it may consider necessary for facilitating the enforcement of such enactment, and any enactment so extended shall have effect as if the continental shelf or the part [including, as the case may be, any designated area under sub-section (5) ] thereof to which it has been extended is a part of the territory of India. (7) Without prejudice to the provisions of sub-section (2) and subject to any measures that may be necessary for protecting the interests of India, the Central Government may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf by foreign Stats: Provided that the consent of the Central Government shall be necessary for the delineation of the course for the laying of such cables or pipelines.

7. (1) The exclusive economic zone of India (hereinafter referred to Exclusive as the exclusive economic zone) is an area beyond and adjacent to the territorial waters, and the limit of such zone is two hundred nautical miles from the baseline referred to in subsection (2) of section3. (2) Notwithstanding anything contained in sub-section (1), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the exclusive

economic zone. (3) No notification shall be issued under sub-section (2) unless resolutions approving the issue of such notification are passed by both Houses of Parliament . (4) In the exclusive economic zone, the Union has,(a) sovereign rights for the purpose of exploration, exploitation, conservation and management of the natural resources, both living and non-living as well as for producing energy from tides, winds and currents; (b) exclusive rights and jurisdiction for the construction, maintenance or operation of artificial islands, off-shore terminals, installations and other structures and devices necessary for the exploration and exploitation of the resources of the zone or for the convenience of shipping or for any other purpose. (c) Exclusive jurisdiction to authorize, regulate and control scientific research; (d) Exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution; and (e) Such other rights as are recognized by International Law. (5) No person (including a foreign Government ) shall, except under, and in accordance with, the terms of any agreement with the Central Government or of a licence or a letter of authority granted by the Central Government, explore or exploit any resources of the exclusive economic zone or carry out any search or excavation or conduct any research within the exclusive economic zone or drill therein or construct, maintain or operate any artificial island, off-shore terminal, installation or other structure or device therein for any purpose whatsoever: Provided that nothing in this sub-section shall apply in relation to fishing by a citizen of India. (6) The Central Government may, by notification in the Official Gazette,(a) declare any area of the exclusive economic zone to be a designated area; or

(b) make such provisions as it may deem necessary with respect to,(i) the exploration, exploitation and protection of the resources of such designated area; or (ii) other activities for the economic exploitation and exploration of such designated area such as the production of energy from tides, winds and currents; or (iii) the safety and protection of artificial islands, off-shore terminals, installations and other structures and devices in such designated area; or (iv) the protection of marine environment of such designated area; or (v) customs and other fiscal matters in relation to such designated area. Explanation – A notification issued under this sub-section may provide for the regulation of entry into and passage through the designated area of foreign ships by the establishment of fairways, sealanes, traffic separation schemes or any other mode of ensuring freedom of navigation which is not prejudicial to the interest of India. (7) The Central Government may , by notification in the official Gazette,(a) extend, with such restrictions and modifications as it thinks fit, any enactment for the time being in force in India or any part thereof to the exclusive economic zone or any part thereof; and (b) make such provisions as it may consider necessary for facilitation the enforcement of such enactment, and any enactment so extended shall have effect as if the exclusive economic zone or the part thereof to which it has been extended is a part of the territory of India. (8) The provisions of sub-section (7) of section 6 shall apply in relation to the laying or maintenance of submarine cables or pipelines on the seabed of the exclusive economic zone as they apply in relation to the laying or maintenance of submarine cables or

pipelines on the seabed of the continental shelf. (9) In the exclusive economic zone and the air space over the zone, ships and aircraft of all States shall, subject to the exercise by India of its rights within the zone, enjoy freedom of navigation and over flight.

8. (1) The Central Government may, by notification in the Official Gazette, specify the limits of such waters adjacent to its land territory as are the historic waters of India. (2) The sovereignty of India extends, and has always extended, to the historic waters of India and to the seabed and subsoil underlying, and the air space over, such waters.

9. (1) The maritime boundaries between India and any State whose coast is opposite or adjacent to that of India in regard to their respective territorial waters, contiguous zones, continental shelves, exclusive economic zones and other maritime zones shall be as determined by agreement (whether entered into before or after the commencement of this section) between India and such State and pending such agreement between India and any such State, and unless any other provisional arrangements are agreed to between them, the maritime boundaries between India and such State shall not extend beyond the line every point of which is equidistant from the nearest point from which the breadth of the territorial waters of India and of such State are measured. (2) Every agreement referred to in sub-section (1) shall, as soon as may be after it is entered into, be published in the Official Gazette. (3) The provisions of sub-section (1) shall have effect notwithstanding anything contained in any other provision of this Act.

10. The Central Government may cause the baseline referred to in sub-section (2) of section 3, the limits of the territorial waters, the contiguous zone, the continental shelf, the exclusive economic zone and the historic waters of India and the maritime boundaries

as settled by agreements referred to in section 9 to be published in charts.

11. Whoever contravenes any provision of this Act or of any notification thereunder shall (without prejudice to any other action which may be taken against such person under any other provision of this or of any other enactment) be punishable with imprisonment which may extend to three years, or with fine, or with both.

12. (1) Where an offence under this Act or the rules made thereunder has been committed by a company, every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub- section (1) where an offence under this Act or the rules made there under has been committed with the consent or the connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation – For the purpose of this section(a) “Company “ means any body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.

13. Any person committing an offence under this Act or any rules made there under or under any of the enactments extended under this Act or under the rules made there under may be tried for the offence in any place in which he may be found or in such other place as the Central Government may, by general or special order, published in the Official Gazette, direct in this behalf.

14. No prosecution shall be instituted against any person in respect of any offence under this Act or the rules made there under without the previous sanction of the Central Government or such officer or authority as may be authorized by that Government by order in writing in this behalf.

15. (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:(a) regulation of the conduct of any person in the territorial waters, the contiguous zone, the continental shelf, the exclusive economic zone or any other maritime zone of India; (b) regulation of the exploration and exploitation, conservation and management of the resources of the continental shelf; (c) regulation of the exploration, exploitation, conservation and management of the resources of the exclusive economic zone; (d) regulation of the construction, maintenance and operation of artificial islands, off-shore terminals, installations and other structures and devices referred to in sections 6 and 7; (e) preservation and protection of the marine environment and prevention and control of marine pollution for the purpose of this Act;

(f) authorization, regulation and control of the conduct of scientific research for the purpose of this Act; (g) fees in relation to licences and letters of authority referred to in subsection (4) of section 6 and sub-section (5) of section 7 or for any other purpose; or (h) any matter incidental to any of the matters specified in clauses (a) to (g). (3) In making any rule under this section, the Central Government may provide that a contravention thereof shall be punishable with imprisonment, which may extend to three years, or with fine, which may extend to any amount, or with both. (4) Every rule made under this Act and every notification issued under sub-section (5) of section 6 or sub- section (6) of section 7 shall be laid, as soon as may be after it is made or issued, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any modification in the rule or the notification or both Houses agree that the rule or notification should not be issued, the rule or notification shall, thereafter, have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.

16. (1) If any difficulty arises in giving effect to the provisions of this Act or of any of the enactments extended under this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act or, as the case may be, of such enactment, as may appear to it to be necessary or expedient for removing the difficulty:

Provided that no order shall be made under this section(a) in the case of any difficulty arising in giving effect to any provision of this Act, after the expiry of three years from the commencement of such provision; (b) in the case of any difficulty arising in giving effect to the provisions of any enactment extended under this Act, after the expiry of three years from the extension of such enactment. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

The Outer Continental Shelf

The U.S. Outer Continental Shelf consists of the submerged lands, subsoil, and seabed in a specified zone up to 200 nautical miles or more offshore from U.S. coasts. The continental shelf is the gently sloping undersea plain between a continent and the deep ocean. The continental shelf is an extension of the continent's landmass under the ocean. The waters of the continental shelf are relatively shallow (rarely more than 150 to 200 meters deep) compared to the open ocean (thousands of meters deep). The continental shelf extends outward to the continental slope where the deep ocean truly begins. Figure 1 is a schematic diagram of the continental shelf. The width of the continental shelf around the U.S. varies from approximately 20 to 400 km. The continental shelf regions are important economically, primarily because their waters are the source of much seafood, and because of the energy these regions provide, both in the form of fossil fuels, such as oil and gas, and renewable energy resources.

NORTH SEA CONTINENTAL SHELF CASES The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases. The dispute, which was submitted to the Court on 20 February 1967, related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other. The Parties asked the Court to state the principles and rules of international law applicable, and undertook thereafter to carry out the delimitations on that basis. The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding: - that the Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6; - that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of customary international law. The Court also rejected the contentions of the Federal Republic in so far as these sought acceptance of the principle of an apportionment of the continental shelf into just and equitable shares. It held that each Party had an original right to those areas of the continental shelf which constituted the natural prolongation of its land territory into and under the sea. It was not a question of apportioning or sharing out those areas, but of delimiting them. The Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable principles, and it indicated certain factors to be taken into consideration for that purpose. It was now for the Parties to negotiate on the basis of such principles, as they have agreed to do. The proceedings, relating to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them, were instituted on 20 February 1967 by the communication to the Registry of the Court of two Special Agreements, between Denmark and the Federal Republic and the Federal Republic and the Netherlands respectively. By an Order of 26 April 1968, the Court joined the proceedings in the two cases. The Court decided the two cases in a single Judgment, which it adopted by eleven votes to six. Amongst the Members of the Court concurring in the Judgment, Judge Sir Muhammad Zafrulla Khan appended a declaration; and President Bustamante y Rivero and Judges Jessup, Padilla Nervo and Ammoun appended separate opinions. In the case of the non-concurring Judges, a declaration of his dissent was appended by Judge Bengzon; and Vice-President Koretsky, together with Judges Tanaka, Morelli and Lachs, and Judge ad hoc Sorensen, appended dissenting opinions.

In its Judgment, the Court examined in the context of the delimitations concerned the problems relating to the legal régime of the continental shelf raised by the contentions of the Parties. The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment) The two Special Agreements had asked the Court to declare the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them beyond the partial boundaries in the immediate vicinity of the coast already determined between the Federal Republic and the Netherlands by an agreement of 1 December 1964 and between the Federal Republic and Denmark by an agreement of 9 June 1965.The Court was not asked actually to delimit the further boundaries involved, the Parties undertaking in their respective Special Agreements to effect such delimitation by agreement in pursuance of the Court's decision. The waters of the North Sea were shallow, the whole seabed, except for the Norwegian Trough, consisting of continental shelf at a depth of less than 200 metres. Most of it had already been delimited between the coastal States concerned. The Federal Republic and Denmark and the Netherlands, respectively, had, however, been unable to agree on the prolongation of the partial boundaries referred to above, mainly because Denmark and the Netherlands had wished this prolongation to be effected on the basis of the equidistance principle, whereas the Federal Republic had considered that it would unduly curtail what the Federal Republic believed should be its proper share of continental shelf area, on the basis of proportionality to the length of its North Sea coastline. Neither of the boundaries in question would by itself produce this effect, but only both of them together - an element regarded by Denmark and the Netherlands as irrelevant to what they viewed as being two separate delimitations, to be carried out without reference to the other. A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of the Parties concerned all those portions of the continental shelf that were nearer to a point on its own coast than they were to any point on the coast of the other Party. In the case of a concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the equidistance method was to pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two equidistance lines were drawn, they would, if the curvature were pronounced, inevitably meet at a relatively short distance from the coast, thus "cutting off" the coastal State from the area of the continental shelf outside. In contrast, the effect of convex or outwardly curving coasts, such as were, to a moderate extent, those of Denmark and the Netherlands, was to cause the equidistance lines to leave the coasts on divergent courses, thus having a widening tendency on the area of continental shelf off that coast. It had been contended on behalf of Denmark and the Netherlands that the whole matter was governed by a mandatory rule of law which, reflecting the language of Article 6 of the Geneva Convention on the Continental Shelf of 29 April 1958, was designated by them as the "equidistance-special circumstances" rule. That rule was to the effect that in the absence of

agreement by the parties to employ another method, all continental shelf boundaries had to be drawn by means of an equidistance line unless "special circumstances" were recognized to exist. According to Denmark and the Netherlands, the configuration of the German North Sea coast did not of itself constitute, for either of the two boundary lines concerned, a special circumstance. The Federal Republic, for its part, had contended that the correct rule, at any rate in such circumstances as those of the North Sea, was one according to which each of the States concerned should have a "just and equitable share" of the available continental shelf, in proportion to the length of its sea-frontage. It had also contended that in a sea shaped as is the North Sea, each of the States concerned was entitled to a continental shelf area extending up to the central point of that sea, or at least extending to its median line. Alternatively, the Federal Republic had claimed that if the equidistance method were held to bc applicable, the configuration of the German North Sea coast constituted a special circumstance such as to justify a departure from that method of delimitation in this particular case. The Apportionment Theory Rejected (paras. 18-20 of the Judgment) The Court felt unable to accept, in the particular form it had taken, the first contention put forward on behalf of the Federal Republic. Its task was to delimit, not to apportion the areas concerned. The process of delimitation involved establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. The doctrine of the just and equitable share was wholly at variance with the most fundamental of all the rules of law relating to the continental shelf, namely, that the rights of the coastal State in respect of the area of continental shelf constituting a natural prolongation of its land territory under the sea existed ipso facto and ab initio, by virtue of its sovereignty over the land. That right was inherent. In order to exercise it, no special legal acts had to be performed. It followed that the notion of apportioning an as yet undelimited area considered as a whole (which underlay the doctrine of the just and equitable share) was inconsistent with the basic concept of continental shelf entitlement. Non-Applicability of Article 6 of the 1958 Continental Shelf Convention The Court then turned to the question whether in delimiting those areas the Federal Republic was under a legal obligation to accept the application of the equidistance principle. While it was probably true that no other method of delimitation had the same combination of practical convenience and certainty of application, those factors did not suffice of themselves to convert what was a method into a rule of law. Such a method would have to draw its legal force from other factors than the existence of those advantages. The first question to be considered was whether the 1958 Geneva Convention on the Continental Shelf was binding for all the Parties in the case. Under the formal provisions of the Convention, it was in force for any individual State that had signed it within the timelimit provided, only if that State had also subsequently ratified it. Denmark and the Netherlands had both signed and ratified the Convention and were parties to it, but the Federal Republic, although one of the signatories of the Convention, had never ratified it, and

was consequently not a party. It was admitted on behalf of Denmark and the Netherlands that in the circumstances the Convention could not, as such, be binding on the Federal Republic. But it was contended that the régime of Article 6 of the Convention had become binding on the Federal Republic, because, by conduct, by public statements and proclamations, and in other ways, the Republic had assumed the obligations of the Convention. It was clear that only a very definite, very consistent course of conduct on the part of a State in the situation of the Federal Republic could justify upholding those contentions. When a number of States drew up a convention specifically providing for a particular method by which the intention to become bound by the régime of the convention was to be manifested, it was not lightly to be presumed that a State which had not carried out those formalities had nevertheless somehow become bound in another way. Furthermore, had the Federal Republic ratified the Geneva Convention, it could have entered a reservation to Article 6, by reason of the faculty to do so conferred by Article 12 of the Convention. Only the existence of a situation of estoppel could lend substance to the contention of Denmark and the Netherlands - i.e., if the Federal Republic were now precluded from denying the applicability of the conventional régime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that régime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this there was no evidence. Accordingly, Article 6 of the Geneva Convention was not, as such, applicable to the delimitations involved in the present proceedings. The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental Shelf (paras. 37-59 of the Judgment) It had been maintained by Denmark and the Netherlands that the Federal Republic was in any event, and quite apart from the Geneva Convention, bound to accept delimitation on an equidistance basis, since the use of that method was a rule of general or customary international law, automatically binding on the Federal Republic. One argument advanced by them in support of this contention, which might be termed the a priori argument, started from the position that the rights of the coastal State to its continental shelf areas were based on its sovereignty over the land domain, of which the shelf area was the natural prolongation under the sea. From this notion of appurtenance was derived the view, which the Court accepted, that the coastal State's rights existed ipso facto and ab initio. Denmark and the Netherlands claimed that the test of appurtenance must be "proximity": all those parts of the shelf being considered as appurtenant to a particular coastal State which were closer to it than they were to any point on the coast of another State. Hence, delimitation had to be effected by a method which would leave to each one of the States concerned all those areas that were nearest to its own coast. As only an equidistance line would do this, only such a line could be valid, it was contended. This view had much force; the greater part of a State's continental shelf areas would normally in fact be nearer to its coasts than to any other. But the real issue was whether it followed that

every part of the area concerned must be placed in that way. The Court did not consider this to follow from the notion of proximity, which was a somewhat fluid one. More fundamental was the concept of the continental shelf as being the natural prolongation of the land domain. Even if proximity might afford one of the tests to be applied, and an important one in the right conditions, it might not necessarily be the only, nor in all circumstances the most appropriate, one. Submarine areas did not appertain to the coastal State merely because they were near it, nor did their appurtenance depend on any certainty of delimitation as to their boundaries. What conferred the ipso jure title was the fact that the submarine areas concerned might be deemed to be actually part of its territory in the sense that they were a prolongation of its land territory under the sea. Equidistance clearly could not be identified with the notion of natural prolongation, since the use of the equidistance method would frequently cause areas which were the natural prolongation of the territory of one State to be attributed to another. Hence, the notion of equidistance was not an inescapable a priori accompaniment of basic continental shelf doctrine. A review of the genesis of the equidistance method of delimitation confirmed the foregoing conclusion. The "Truman Proclamation" issued by the Government of the United States on 28 September 1945 could be regarded as a starting point of the positive law on the subject, and the chief doctrine it enunciated, that the coastal State had an original, natural and exclusive right to the continental shelf off its shores, had come to prevail over all others and was now reflected in the1958 Geneva Convention. With regard to the delimitation of boundaries between the continental shelves of adjacent States, the Truman Proclamation had stated that such boundaries "shall be determined by the United States and the State concerned in accordance with equitable principles". These two concepts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, had underlain all the subsequent history of the subject. It had been largely on the recommendation of a committee of experts that the principle of equidistance for the delimitation of continental shelf boundaries had been accepted by the United Nations International Law Commission in the text it had laid before the Geneva Conference of 1958 on the Law of the Sea which had adopted the Continental Shelf Convention. It could legitimately be assumed that the experts had been actuated by considerations not of legal theory but of practical convenience and cartography. Moreover, the article adopted by the Commission had given priority to delimitation by agreement and had contained an exception in favour of "special circumstances". The Court consequently considered that Denmark and the Netherlands inverted the true order of things and that, far from an equidistance rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance, the latter was rather a rationalization of the former The Equidistance Principle Not a Rule of Customary International Law (paras. 60-82 of the Judgment) The question remained whether through positive law processes the equidistance principle must now be regarded as a rule of customary international law.

Rejecting the contentions of Denmark and the Netherlands, the Court considered that the principle of equidistance, as it figured in Article 6 of the Geneva Convention, had not been proposed by the International Law Commission as an emerging rule of customary international law. This Article could not be said to have reflected or crystallized such a rule. This was confirmed by the fact that any State might make reservations in respect of Article 6, unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the Convention. While certain other provisions of the Convention, although relating to matters that lay within the field of received customary law, were also not excluded from the faculty of reservation, they all related to rules of general maritime law very considerably antedating the Convention which were only incidental to continental shelf rights as such, and had been mentioned in the Convention simply to ensure that they were not prejudiced by the exercise of continental shelf rights. Article 6, however, related directly to continental shelf rights as such, and since it was not excluded from the faculty of reservation, it was a legitimate inference that it was not considered to reflect emergent customary law. It had been argued on behalf of Denmark and the Netherlands that even if at the date of the Geneva Convention no rule of customary international law existed in favour of the equidistance principle, such a rule had nevertheless come into being since the Convention, partly because of its own impact, and partly on the basis of subsequent State practice. In order for this process to occur it was necessary that Article 6 of the Convention should, at all events potentially, be of a norm-creating character. Article 6 was so framed, however, as to put the obligation to make use of the equidistance method after a primary obligation to effect delimitation by agreement. Furthermore, the part played by the notion of special circumstances in relation to the principle of equidistance, the controversies as to the exact meaning and scope of that notion, and the faculty of making reservations to Article 6 must all raise doubts as to the potentially norm-creating character of that Article. Furthermore, while a very widespread and representative participation in a convention might show that a conventional rule had become a general rule of international law, in the present case the number of ratifications and accessions so far was hardly sufficient. As regards the time element, although the passage of only a short period of time was not necessarily a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, it was indispensable that State practice during that period, including that of States whose interests were specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved. Some 15 cases had been cited in which the States concerned had agreed to draw or had drawn the boundaries concerned according to the principle of equidistance, but there was no evidence that they had so acted because they had felt legally compelled to draw them in that way by reason of a rule of customary law. The cases cited were inconclusive and insufficient evidence of a settled practice. The Court consequently concluded that the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of

the equidistance principle, its subsequent effect had not been constitutive of such a rule, and State practice up to date had equally been insufficient for the purpose. The Principles and Rules of Law Applicable The legal situation was that the Parties were under no obligation to apply the equidistance principle either under the 1958 Convention or as a rule of general or customary international law. It consequently became unnecessary for the Court to consider whether or not the configuration of the German North Sea coast constituted a "special circumstance". It remained for the Court, however, to indicate to the Parties the principles and rules of law in the light of which delimitation was to be effected. The basic principles in the matter of delimitation, deriving from the Truman Proclamation, were that it must be the object of agreement between the States concerned and that such agreement must be arrived at in accordance with equitable principles. The Parties were under an obligation to enter into negotiations with a view to arriving at an agreement and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they were so to conduct themselves that the negotiations were meaningful, which would not be the case when one of them insisted upon its own position without contemplating any modification of it. This obligation was merely a special application of a principle underlying all international relations, which was moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes. The Parties were under an obligation to act in such a way that in the particular case, and taking all the circumstances into account, equitable principles were applied. There was no question of the Court's decision being ex aequo et bono. It was precisely a rule of law that called for the application of equitable principles, and in such cases as the present ones the equidistance method could unquestionably lead to inequity. Other methods existed and might be employed, alone or in combination, according to the areas involved. Although the Parties intended themselves to apply the principles and rules laid down by the Court some indication was called for of the possible ways in which they might apply them. For all the foregoing reasons, the Court found in each case that the use of the equidistance method of delimitation was not obligatory as between the Parties; that no other single method of delimitation was in all circumstances obligatory; that delimitation was to be effected by agreement in accordance with equitable principles and taking account of all relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constituted a natural prolongation of its land territory, without encroachment on the natural prolongation of the land territory of the other; and that, if such delimitation produced overlapping areas, they were to be divided between the Parties in agreed proportions, or, failing agreement, equally, unless they decided on a régime of joint jurisdiction, user, or exploitation. In the course of negotiations, the factors to be taken into account were to include: the general configuration of the coasts of the Parties, as well as the presence of any special or unusual

features; so far as known or readily ascertainable, the physical and geological structure and natural resources of the continental shelf areas involved, the element of a reasonable degree of proportionality between the extent of the continental shelf areas appertaining to each State and the length of its coast measured in the general direction of the coastline, taking into account the effects, actual or prospective, of any other continental shelf delimitations in the same region.

Libya-Malta continental shelf case

The subsequent Libya-Malta case, decided by the International Court of Justice in 1986, was significant in that it established a methodology for the ICJ to approach maritime boundary cases. In the 1983 Special Agreement submitted by the parties, the court was asked to decide on the “principles and rules of international law” applicable to the delimitation of the area – i.e. not to decide on the position of the boundary itself.

In the case, the court commenced by drawing an equidistance line between the coastlines of the two states, and then proceeded to take into account “relevant circumstances.” In this case, the most significant was the disparity between the respective lengths of the coastlines of Libya (192 miles) and Malta (24 miles).

Having ascertained that this disparity should be taken into account, the court was then obliged to suggest the extent to which the equidistance line should be adjusted – and concluded that “a shift of about two-thirds of the distance between the Malta-Libya Equidistance line and a line located 24' further north gives an equitable result.” In sum, the court decided that the relevant circumstances and factors to be taken into account included:

(1) "The general configuration of the coasts of the parties, their oppositeness, and their relationship to each other within the general geographical context." (2) The disparity in the lengths of the relevant coasts of the Parties and the distance between them (3) The need to avoid in the delimitation any excessive disproportion between the extent of the continental shelf areas pertaining to coastal State and the length of the relevant part of its coast, measured in the general direction of the coastlines. Libya had argued that there existed, in the area of the delimitation, two distinct continental shelves divided by what it described as a “rift zone,” and that these shelves should form the basis of the delimitation. However, the court took the view that “since the development of the law enables a State to claim continental shelf up to as far as 200 nm from its coast, whatever the geological characteristics of the corresponding sea-bed and subsoil, there is no reason to ascribe any role to geological or geophysical features within that distance.” “Equitable principles,” in this and subsequent cases, proved to be of greater importance than geography.

ACKNOWLEDGEMENT For the successful completion of this project , I would like to thank my Law & Poverty teacher Dr Ghulam Yazdani. He made the concepts of the topic so clear in my mind that it became very easy for me to work on the topic. It would not have been possible to complete the project work without his guidance. I would also like to thank my elder sisters and my elder brother who were a constant support throughout the project making. Last, but not the least I would like to thank my Parents who stood by me through every thick and thin.

SHAHRUKH AHMAD

BIBLIOGRAPHY

International Law 4th edition by Malcom.N.Shaw Introduction to International Law 9th edition by G.N.starke International Law 3rd edition by Rebecca.M.M.Wallace

PUBLIC INTERNATIONAL LAW

CONTINENTAL SHELF

BY SHAHRUKH AHMAD

4th semester 2nd year J.M.I