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Class 14:
Emergence of Customary International Law:
The Continental Shelf Doctrine
Assignment
Read these materials together with the excerpts from the U.S. Digest of International Law which set forth state practice relating to the continental shelf prior to the adoption of the 1958 Continental Shelf Convention (which we will study in the next class).
Consider the questions at the end of this assignment.
Background
"A law of the sea is as old as nations, and the modern law of the sea
is virtually as old as modern international law. For three hundred years it
was probably the most stable and least controversial branch of international
law."FN1
The law of the sea emerged from the struggle between coastal states,
who sought to expand their control over marine areas adjacent to their
coastlines, and maritime states, who favored freedom to navigate and fish.
By the end of the 18th century, the doctrine had emerged that states have
sovereignty over their territorial sea. The maximum breadth of the territorial
sea was generally considered to be three miles - the distance that a shore-based cannon could reach and that a coastal state could therefore control
- although there was some disagreement on this point.
The first acceptance in state practice of the three-mile belt of territorial occurred in 1793, when the United States, forced to define its neutral waters in the war between France and Great Britain, proposed that the belligerent should respect United States neutrality up to "the utmost range of a cannon ball, usually stated at one sea league" [i.e., three miles]....
Thereafter the three-mile limit was applied for a number of purposes, and states came to rely on the comprehensive notion of the territorial sea as a basis for the exercise of, inter alia, fishing, police and revenue functions. After inclusion in a number of European treaties regulating fishing rights, and after adoption by a number of Asian and South American states, the three-mile limit was world-wide by the end of the nineteenth century, with comparatively few exceptions (notably the Scandinavian countries--four miles; Russia--three to twelve miles at different times, and Spain and Portugal--each claiming six miles). . . .
State practice remained apparently fairly constant up to and during the first decade of the twentieth century, but considerable deep-rooted dissatisfaction with the three-mile territorial sea was revealed in the surveys conducted by the Preparatory Committee for the League of Nations' Hague Codification Conference in 1930, at which the subject of territorial waters was to be one of the three chosen topics for codification. The Committee reported that its survey of governments showed agreement that "a state has sovereignty over a belt of sea around its coast," but that there was a lack of unanimity on the question of the breadth of this belt.... "Most States agree, to a greater or lesser extent, that exercise of particular specified rights by the coastal State outside its territorial waters, i.e., on the high seas, can be accepted as legitimate--at any rate as a compromise and as the result of a convention on the subject."FN2
Traditionally, the area beyond the territorial sea--i.e., the "high seas"
-- was regarded as res communis--that is, land that could not be acquired
by states.FN3 One scholar has described the basic regime of the high seas as
follows:
For hundreds of years the basic principle of the law of the seas has been freedom. With it - or beneath it - has been the principle that the sea belonged to everyone, or to no one. In particular, unlike land, the sea could not be acquired by nations and made subject to national sovereignty.Freedom of the seas has meant freedom to use the seas, and no uses have been barred. The principal use has been navigation-for fishing, trade, travel, war. In time, the seas began to lend themselves to tunneling, laying of cables, submarine travel, scientific research....
Freedom has extended also to the air above the seas and it, too, has been open to all for aviation and its various purposes. There has been no agreement, however, as to "who owns the seabed," as to whether the "commonage" of the seas applies as well to the seabed and its subsoil. Some have urged that the seas are not subject to national acquisition only because that would interfere with freedom, particularly for navigation, but there is no similar reason for denying national acquisition and sovereignty in the seabed and its subsoil.FN4
Until the middle part of the twentieth century, the question of whether the seabed could be claimed by a state was academic, since exploitation of seabed resources was not technologically practicable. As the technical means developed, however, to exploit seabed resources beyond the three-mile limit, this brought the question of ownership to the fore.
The first (and still the only) area of the seabed that was capable of
being commercially exploited was the continental shelf (see "chart" ). The
continental shelf is a geological formation; it is the submerged prolongation
of a continental land mass out to sea. It gradually slopes downward,
averaging about 130 meters (400 feet) in depth at its outer limit. Beyond the
continental shelf is the "continental slope," a steeper drop off that descends
to a depth of 1,200-3,500 meters, and then the "continental rise," a gently
sloping area that descends to the deep seabed, which lies about 3,500 to
5,500 meters below the ocean surface. The width of the continental shelf
varies dramatically in different parts of the world. In some areas, the
continental shelf extends more than 350 miles from shore; in other areas
(such as the western coast of South America), coastal states have an
extremely narrow continental shelf. Worldwide, the continental shelf
constitutes about 1/5 of the ocean floor.
In 1945, the US promulgated what became known as the "Truman Proclamation," in which it asserted exclusive jurisdiction over the natural resources of its "continental shelf." The background and aftermath of the Truman Proclamation are described in excerpts from the U.S. Digest of International Law.
Questions
- What were the customary international law norms, if any, relating to
the continental shelf as of 1945, before Truman issued the Truman
Proclamation?
- If you had been the Legal Adviser to the State Department in 1945,
and were asked for your opinion about whether the proposed proclamation
was consistent with customary international law, what would you have said?
Would you have recommended that Truman issue the Proclamation? What
factors would have been relevant to your advice?
- Describe the continental shelf doctrine as contained in the Truman
Proclamation? What were the key elements of the doctrine?
- By the mid-1950s, had the continental shelf doctrine became a norm
of customary law? If so, state the content of that customary norm. Was
there consistent state practice with respect to the continental shelf? If not,
were states free to act however they chose?
- Assume that it is 1955. A Japanese oil company has just discovered
a major oil field 50 miles from the Japanese coast, at a depth of 1000 ft. You
are advising the Japanese government about whether to claim this area as
part of the Japanese continental shelf. What advice would you give? Why?
Footnotes
FN1 Louis Henkin, How Nations Behave 212 (2d ed. 1979).
FN2 Henkin, et al., International Law: Cases and Materials 1241-42 (1993).
FN3 In contrast, res nullius is land that, while belonging to no state currently, is subject to claims
of national jurisdiction -- for example, by discovery and occupation.
FN4 Louis Henkin, Uses of the Sea 70-71 (Gullion ed. 1968).