Settlement of disputes relating to the delimitation of the outer continental shelf: The role of international courts and arbitral tribunals

• Author: Vicente Marotta Rangel
• Pages: 232-247

Page 232

1. Introduction

1. I am^* indebted to the organizers of this Symposium, Professor Doris König and Professor Rainer Lagoni, for their kind invitation. My thanks are also addressed to Judge L.D.M. Nelson, the President of the Tribunal, for his contribution to some aspects of the matter I am required to explore. This matter - Settlement of Disputes Relating to the Delimitation of the Outer Continental Shelf: The Role of International Courts and Tribunals - follows in a logical sequence other items the Symposium has discussed so far today, in particular those developed by Professor Oude Elferink from the Netherlands Institute for the Law of the Sea. I am also pleased to see as a commentator my distinguished and learned colleague, Judge and Professor Tullio Treves.

2. In the Anglo-Norwegian Fisheries case¹, the International Court of Justice (hereinafter ICJ) argued that "although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal state is competent to perform it, the validity of the delimitation with regard to other states depends upon international law". Nothwithstanding the relevance of the case to territorial waters, the decision has pertinence with continental shelf delimitation. The Court, in the same case, declared that "it is the land which confers upon the coastal State a right to the waters off its coasts".²

The 1982 United Nations Convention on the Law of the Sea³ (hereinafterPage 233Convention) brings equally to the fore the importance of the State decision-making power to define which areas are subject to its sovereignty or jurisdiction. The exercise of this competence undergoes stronger restriction in the case of the continental shelf because of the impact of geophysical and geomorphological realities upon this particular delimitation. This exercise also has a muitipie dimension because of its impulse to the entitlement of other States, to their own maritime areas and on the international community interest as a whole. For these reasons, the delimitation of the continental shelf requires an international control, both administrative and technological by the Commission on the Limits of the Continental Shelf (hereinafter the Commission,), as well as a judicial control (although not satisfactory) by the institutions referred to in the Convention, article 287, §1.

II Outer continental shelf delimitation

3. Taking into account technical and scientific concepts, "the breadth of the shelf can vary considerably and is usually about 40 nm wide, unless truncated by faults. A shelf is dependent on the type of margin in which it is situated. It can extend seawards beyond 200 nm in a passive margin, whereas in an active or shared margin, shelf width could be as little as 5 nm"⁴, Article 76 refers to "continental shelf" not only as a geomorphological but also as a special legal term, which could apply to the area of the seabed, beyond the territorial sea under the sovereign rights of the coastal State for the purpose of exploiting it and exploring its natural resources. As the continental shelf comprises - according to paragraph 1 of the same article - "the sea-bed and subsoil of the submarine areas" that extend "throughout the natural prolongation of its land territory", the outer limit may alternate: either 200 nautical miles measured from the territorial sea baselines, where the outer edge of the continental margin does not extend to that distance; or, where this extension exceed it, different criteria in accordance with article 76, paragraphs 4, 5 and 6, of the Convention. Incidentally these paragraphs have been described as combining the "influences of geography, geology, geomorphology and jurisprudence, a tour de force of interdisciplinary co-operation".⁵

4. As it is known, for a continental shelf there are two kinds of delimitation. The first one occurs between States with opposite or adjacent coasts. In this case, according to the Convention, article 83, $ 1, the delimitation "shall be effected by agreement on the basis of international law, as referred to in article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution". This paragraph was proposed by the President of the Third United Nations Conference on the Law of the Sea (T.T.B, Koo, from Singapore) and could receive the support of all interested States, It contributed to reduce the role of other criteria (equitablePage 234principles, median or equidistance line, relevant circumstances). "If no agreement can be reached" - adduces § 2 - "within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV".

   The second case of delimitation has currently drawn our attention, since the beginning of the colloquium, our attention. It occurs when the coastal State's continental shelf outer limit extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. It takes place in relatively few areas; only twenty nine miter continental shelves were identified in 1988, among them twenty-two involving more than one State and only seven just one State⁶. The latter occurrence requires no mention for agreements nor for procedures stipulated in Part XV. The coastal State shall delineate the outer limits "by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude" (art. 76, § 7); and shall submit information on these limits "along with supporting scientific and technical data as soon as possible", to the Commission. The technical data, upholding the coastal State's outer limit "likely to be of a varied and complex nature will probably include bathymetric, acoustic and seismic data", in order to reflect the purpose designed⁷.

5. These two different categories of delimitation can be illustrated by a single case: the arbitration on the overlapping continental shelf claims between Canada and France, in connection with the French islands St. Pierre and Miquelon, in the outer Gulf of St. Lawrence. The chronology of the dispute can be traced back to 1966, when the exchange of views between the French and Canadian governments was prompted by the issuing of hydrocarbon exploration permits in the area.

   Whereas for France - on the question of opposite and adjacent delimitation - the principle of equidistance should prevail, Canada maintained that the "special circumstances" rule was applicable to the area. Both Parties had ratified the 1958 Convention on the Continental Shelf, but France made several reservations among which those made to article 6 on the delimitation of continental shelf. They were not accepted by Canada. Since then many rounds of negotiations have been held to settle the dispute. In 1977 both States extend their maritime jurisdictions up to 200 nautical miles from their respective coasts. In February of the same year France declared the zone extending 188 miles beyond the territorial waters of SaintPage 235Pierre and Miquelon to be an economic zone under its jurisdiction. After further unsuccessful negotiations, an agreement was signed on 30 March 1989 establishing a Court of Arbitration to proceed with the delimitation of the maritime areas between the two countries. Among the counsels and lawyers of one of the Parties, before his election to this Tribunal, we have the satisfaction to mention Professor Tulio Treves, and welcome comments he eventually intends to make on this case.

   On June 10, 1992, the Court settled the dispute on the disagreement over coastlines and continental shelf either opposite or adjacent, After rejecting the proposed solutions of the parties, the Court decided to present its own proposal taking into account two different sections of the maritime area where the delimitation should be effected. On the delimitation of our special concern, the Court did not find it within its competence to comment upon arguments presented by the parties regarding rights to shelf areas beyond 200 nautical miles. Any decision on these areas, in the view of the Court, "would constitute a pronouncement not between the Parties but between each one of them and the international community, represented by organs entrusted with the administration and protection of the international sea-bed Area (the sea-bed beyond national jurisdiction) that has been declared to be the common heritage of mankind"⁸. As a matter of fact, "The dictum"- according to Judge L D. M. Nelson - "was in a sense unnecessary, because of the limits of the mandate" and because, as the Court itself acknowledged, "the geological and geornorphological data in the relevant area" were "not sufficient to permit the application of Article 76"⁹.

III The coastal state's rights

6. The rights of the coastal State over its continental shelf are not coming into question today. They are independent on the State's participation or not in the Convention. They are clearly expressed in paragraph 1, article 76, which reproduces with no alteration the first negotiating paper of the Conference circulated in 1975, i.e., the Informal Single Negotiating Text.

The interest of the State is evident in denning with accuracy its own territory. The extended legal continental shelf, with boundaries marked as "final and binding", is the major impetus for States to submit the particulars of the outer limit line of the continental shelf to the Commission. The legal uncertainty may hinder the activities to be undertaken in the international seabed area and may raise the question of payments and contributions to the Authority. In addition, until the outer limits are...