The Delimitation Method for the Continental Shelf Beyond 200 Nautical Miles: A Reflection on the Judicial and Arbitral Decisions

Abstract

This article examines the practice of the international judicial and arbitral tribunals thus far in delimiting the continental shelf beyond 200?nm, and indicates the trend reflected in the decisions. However, the article disagrees with the critical observation of the tribunals that the delimitation method for the continental shelf beyond 200?nm should follow that within 200?nm. The delimitation of the continental shelf beyond 200?nm is essentially different from the single maritime delimitation within 200?nm, and various methods may be employed in order to achieve an equitable result in a particular case.     

Can the United States Establish the Outer Limits of Its Extended Continental Shelf Under International Law?

Although most provisions of the United Nations Convention on the Law of the Sea are regarded customary international law and the United States views most of its provisions as such, the outsider status of the United States causes problems in some areas, especially concerning the continental shelf beyond 200 nautical miles. This article asks whether it is possible for the United States to establish the outer limits of its continental shelf beyond 200 nautical miles in line with international law without becoming a state party to the convention, and if that is possible, how could the United States proceed?     

The Rejection of a Theoretical Beauty: The Foot of the Continental Slope in Maritime Boundary Delimitations Beyond 200 Nautical Miles

This article addresses maritime boundary delimitation concerning the continental shelf beyond 200 nautical miles. The focal point is how the foot of the continental slope can be used as the point of departure in drawing the provisional equidistance line in outer continental shelf boundary delimitations between neighboring states. The article examines the strength and weaknesses of this approach and asks whether the International Tribunal for the Law of the Sea indirectly rejected this approach in the 2012 Bangladesh v. Myanmar Case.     

Canada and Arctic Politics: The Continental Shelf Extension

This article challenges the validity of the commonly held assumption that Canada and other Arctic countries are engaged in a highly competitive scramble to stake claims for extensions to their continental shelves beyond 200 nautical miles, and that Canada may lose out because it is lagging behind in this race to claim as many seabed resources as possible. It argues that the process is orderly; that, under international law, Canada already has sovereign rights over the continental shelf beyond 200 nautical miles; that the process is generally characterized by cooperation; and that the timing of various countries’ submissions to the Commission on the Limits of the Continental Shelf will not be a key determinant of success.     

Coastal States in the South China Sea and Submissions on the Outer Limits of the Continental Shelf

The purpose of this article is to examine the outer continental shelf submissions made by the coastal states of the South China Sea and their potential impact on legal and political developments in the South China Sea. In accordance with the United Nations Convention on the Law of the Sea of 1982 and the guidelines of the Commission on the Limits of the Continental Shelf, coastal states are to establish the outer limits of their continental shelf where it extends beyond 200 nautical miles. Meeting this obligation is complicated in enclosed or semienclosed seas where there are maritime disputes such as in the South China Sea.     

The Admissibility of Outer Continental Shelf Delimitation Claims Before the ICJ Absent a Recommendation by the CLCS

In the 2017 Maritime Delimitation in the Indian Ocean Case, the International Court of Justice stated that “in appropriate circumstances” maritime delimitation claims beyond 200 nm may be admitted before the Commission on the Limits of the Continental Shelf issues a recommendation. This is a deviation from the Court's previous approach in the 2016 Nicaragua v. Colombia (Preliminary Objections) Case. This article follows the evolution of the international case law with respect to the admissibility of outer continental shelf delimitation claims absent a final and binding outer limit, and highlights the positive implications of the International Court's most recent formula.     

Disputed Areas and the 10-Year Time Frame: A Legal Lacuna?

Where a coastal state intends to delineate, in accordance with Article 76 of the 1982 Law of the Sea Convention, the outer limits of its continental shelf beyond 200 nautical miles, it is to submit scientific and technical data of such proposed limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that state. This obligation has subsequently been subject to a general de facto amendment by which the commencement of the 10-year time frame has been postponed to May 13, 1999, for the states for which the Convention had entered into force prior to the above date. This article discusses whether any provision in the Convention, any subsequent agreement, or any subsequent practice render inoperative the 10-year time frame with regard to those parts of the outer continental shelf that are disputed areas. It is concluded that nothing in the Convention, no subsequent agreements, and no subsequent practice allow for derogation of the 10-year time frame with regard to disputed areas.     

Russia's Revised Arctic Seabed Submission

This article identifies the key aspects of the Partial Revised Submission of the Russian Federation with respect to continental shelf areas beyond 200 nautical miles in the Arctic Ocean. It focusses on pro- cedural and substantive legal issues, including how seafloor highs were legally classified and how Russia used referenced “sector lines” to determine the outer limits of its shelf.     

A Tribunal Navigating Complex Waters: Implications of the Bay of Bengal Case

The International Tribunal on the Law of the Sea's March 2012 Judgment in the Bay of Bengal Case is a landmark decision in multiple ways. It represents the first maritime boundary to be delimitated by the Tribunal. It is the first adjudication of a maritime boundary in Asia, and it is also the first judicial delimitation of a maritime boundary for parts of the extended continental shelf located seaward of the 200-nautical-mile limit from baselines. While the Tribunal's ruling largely resolves the maritime dispute between Bangladesh and Myanmar, it also raises a number of questions and concerns that are highlighted in this article, including the Tribunal's approach to delimitation both within and beyond the 200-nautical-mile limit, the treatment of islands, the interplay between law of the sea institutions and the creation of a so-called grey area where continental shelf jurisdiction falls to one state and water column jurisdiction to the other.     

Creeping jurisdiction beyond 200 miles in the light of the 1982 law of the sea convention and state practice

Abstract

This article attempts a complex examination of problems pertaining to actual and potential extensions of coastal state rights and jurisdiction beyond the limit of 200 miles in the light of 1982 Law of the Sea Convention and state practice. Extension of the continental shelf regime, in the context of its outer limit beyond 200 miles, the entitlement of rocks to this limit, and the scope of coastal state rights and duties, is analyzed first. It is followed by discussion of the extension of the exclusive economic zone (EEZ) or fishery zone regime, which involves extension of certain coastal state fishery rights on the one hand, and the right of intervention in cases of maritime casualties and the liability regime for oil pollution damage on the other hand. Attention is also paid to presently speculative extensions of both regimes as a consequence of sea level rise. The author concludes that, if a continuing nontreaty situation deprives recourse to compulsory dispute settlement, the worst‐case scenario of spatial extension of the entire EEZ regime to the outer edge of the continental margin could not with certainty be excluded.     

A Note on the European Union's Integrated Maritime Policy

This article analyses the characteristics of the Commission on the Limits of the Continental Shelf as an international decision-making institution in the process of establishing the seaward limits of the continental shelf beyond 200 nautical miles from the baselines of the territorial sea under Article 76 of the 1982 UN Convention on the Law of the Sea. The Commission may be compared to scientific bodies established to give advice relating to the implementation of treaty provisions. However, in the exercise of its functions, the Commission also performs legal-administrative tasks, and its recommendations to individual coastal states entail significant legal effects; for instance, as a means of interpretation under the Vienna Convention on the Law of Treaties. The Commission's functions and competencies must be taken into account in classifying and understanding this unique international institution.     

Transatlantic migration and deep mid-ocean diving by basking shark

Despite being the second largest fish, basking sharks (Cetorhinus maximus) have been assumed to remain in discrete populations. Their known distribution encompasses temperate continental shelf areas, yet until now there has been no evidence for migration across oceans or between hemispheres. Here we present results on the tracks and behaviour of two basking sharks tagged off the British Isles, one of which released its tag off Newfoundland, Canada. During the shark's transit of the North Atlantic, she travelled a horizontal distance of 9589 km and reached a record depth of 1264 m. This result provides the first evidence for a link between European and American populations and indicates that basking sharks make use of deep-water habitats beyond the shelf edge.     

Submarine Ridges and Elevations of Article 76 in Light of Published Summaries of Recommendations of the Commission on the Limits of the Continental Shelf

Several of the summaries of recommendations of the Commission on the Limits of the Continental Shelf contain recommendations involving the application of the provisions of Article 76 of the 1982 UN Convention on the Law of the Sea with respect to a class of morphological features that can best be described as seafloor highs. The application of these provisions requires the classification of such features into one of the three categories of seafloor highs: oceanic ridges of the deep ocean floor, submarine ridges, and submarine elevations that are natural components of the continental margin. The summaries of the CLCS recommendations provide guidance on the approach that has been adopted for the application of these provisions. Furthermore, the summaries give insight into the principles by which the CLCS is guided in considering the submerged prolongation of the landmass of a coastal state and the delineation of the outer limits of its continental shelf beyond 200 nautical miles, and the importance of determining the foot of the continental slope at its base in this connection.     

Third Party Intervention in the Commission on the Limits of the Continental Shelf Regarding a Submission Involving a Dispute

The Commission on the Limits of the Continental Shelf (CLCS) was established in accordance with Article 76 of the Law of the Sea Convention. CLCS has the mandate to consider data submitted by coastal states concerning the outer limits of their continental shelf in areas where those limits extend beyond 200 nautical miles and to make recommendations to the submitting state on matters related to the establishment of the limits. For third parties that have actual or potential disputes, unresolved borders, or unresolved land or maritime disputes with the submitting state, the recommendations of the CLCS can be very sensitive. The focus of this article is on the practice of third parties in responding to submissions and how third parties have constructed their Notifications.     

Crossed Lines: The Curious Case of the Beaufort Sea Maritime Boundary Dispute

The Beaufort Sea maritime boundary dispute has traditionally been understood as involving a wedge-shaped area of maritime space that extends to a distance of 200 nautical miles north of the terminus of the Canada-United States border between the Yukon Territory and Alaska. However, new data collected in pursuit of establishing the limits of the extended continental shelf in the region show that the two countries’ seabed resource rights may stretch far beyond the 200-nautical-mile limit of the exclusive economic zone. Significantly, at approximately 200 nautical miles from shore, the U.S.-claimed equidistance line crosses the line claimed by Canada, which follows the 141° W meridian, meaning that the legal positions of the two countries if simply extended beyond the EEZ would appear to favor the other party. This article explores how the United States and Canada might seek to reformulate their legal positions to resolve the dispute. Though these reformulated positions might not reduce the area in dispute, they will clarify it and potentially enable the parties to either delimit a single maritime boundary or choose to implement one of a number of creative solutions to the dispute that are outlined in the article.     

Natural Prolongation: A Living Myth in the Regime of the Continental Shelf?

Since the 1969 North Sea Continental Shelf cases, natural prolongation has been a semisacred expression that characterizes the continental shelf. This article examines whether this notion is still viable. A comparative study of its current use in the U.N. Convention on the Law of the Sea against its original use reveals misunderstandings in three key aspects: entitlement, delineation, and delimitation of the continental shelf. This article concludes that natural prolongation no longer constitutes a pivot in the legal understanding of the continental shelf.     

On the origin of Antarctic marine benthic community structure

Environmental conditions fostering marine communities around Antarctica differ fundamentally from those in the rest of the world's oceans, particularly in terms of pronounced climatic fluctuations and extreme cold. Here, we argue that the rarity of pelagic larval stages in Antarctic marine benthic invertebrate species is a consequence of evolutionary temperature adaptation and that this has greatly contributed to the current structure of the Antarctic benthic community. In arguing this position, we challenge the likelihood of previously suggested survival strategies of benthic communities on the Antarctic continental shelf and slope during Cenozoic glacial periods. By integrating evidence from marine geology and geophysics, we suggest that the Antarctic continental shelf and slope were both unfavourable environments for benthic communities during glacial periods and that community survival was only possible in the deep sea or in shelters on the continental shelf as a result of the diachronism in maximum ice extent.     

Community structure of deep-sea demersal fish in the North Aegean Sea (northeastern Mediterranean)

The spatial structure and seasonal changes of the demersal fish assemblages on the continental shelf (100–200 m) and upper slope (200–500 m) in the North Aegean Sea (Northern Aegean and Thracian Seas, northeastern Mediterranean, Greece) were analysed. Seasonal experimental trawl surveys, carried out from summer 1990 to autumn 1993, provided a total of 151 demersal fish species. Analysis of 259 bottom trawls showed the existence of four groups associated with the continental shelf and the upper slope; each group was dominated by a small number of species. The bathymetric distribution of the species, established using measures of the centre of gravity and habitat width, revealed that most of the species had a wide distributional range within the study area, although a few were restricted to the greatest depths. Density, biomass, species richness and diversity decreased significantly with depth, and were also indicative of distinctive characteristics between these fish assemblages. Mean fish weight exhibited two different trends: a bigger-deeper phenomenon at the continental shelf and a smaller-deeper phenomenon at the upper slope. The variability in assemblage structure was determined mainly by depth and, to a lesser extent, by season and geographical location. For some species, results suggest a pattern of gradual species replacement along the depth gradient coupled with ontogenetic habitat shifts.     

Transberingian dispersal of cestodes in mammals

During Pleistocene glaciations, eustatic lowering of sea-level exposed the continental shelf between northeastern Eurasia and northwestern North America. That land in combination with unglaciated areas on the adjacent continents formed a vast region open to the west but bounded on the east by continental ice. Organisms from Eurasia spread into the unglaciated Beringian refugium, which was biotically an eastward extension of the Palaearctic. With rising sea-levels following glacial periods, the Bering Strait was formed and organisms of Eurasian origin were left within the nearctic sector of Beringia. As the continental ice disappeared, plants and animals spread eastward and southward from Beringia, while organisms from beyond the southern margins of the ice extended their ranges northward. The significance of Beringia is discussed with reference to the dispersal of host-specific cestodes in mammals that attained holarctic status during the late Pleistocene.     

Defining Seaward Boundaries in a Domestic Context: Norway and the Svalbard Archipelago

Abstract

This article analyzes a little-noticed aspect of the international legal controversy pertaining to Svalbard’s maritime zones. It concerns where and by which method Norway should draw the boundaries between Svalbard’s continental shelf and the 200-mile zone, on the one hand, and other maritime zones subject to Norwegian jurisdiction, on the other. The assumption upon which the discussion rests is that the Spitsbergen Treaty signatories enjoy treaty rights in the maritime zones beyond Svalbard’s territorial waters. The law of the sea does not contain rules on the drawing of maritime boundaries between different parts of a state’s territory, but the rules on delimitation between states offer a strong analogy. In the search for an equitable solution, primacy should be given to geographical factors. The article argues that Norway could do more to enhance the openness regarding the Svalbard delimitation question since its outcome will be of significant interest to other states.