II. | Substantive International Law - Second Part |
2. | LAW OF THE SEA |
2.2. | Determination of Maritime Boundaries |
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Arbitral Award of 31 July 1989,
Judgment, I.C.J. Reports 1991, p. 53
[pp. 89-90 S.O. Oda] 18. The new concept of the exclusive economic
zone gives to the coastal State
"sovereign rights for the purpose of exploring and exploiting... the
natural resources, whether living or non-living... of the sea-bed and its
subsoil" (1982 United Nations Convention on the Law of the Sea, Art. 56,
para. 1),
while under the already established existing concept of the continental
shelf, the coastal State exercises "sovereign rights for the purpose of
exploring [the continental shelf] and exploiting its natural resources"
(1958 Convention on the Continental Shelf, Art. 2, para. 1; 1982 United Nations
Convention, Art. 77, para. 1). Bearing in mind that the subject (that is, the
exploring of the sea-bed and its subsoil and the exploitation of its natural
resources, covered by the concept of the continental shelf) is now completely
superseded by or even absorbed in the new concept of the exclusive economic
zone, a uniform maritime area for the exclusive economic zone and the
continental shelf may certainly be desirable, and it is to be recommended that a
single line of delimitation between the neighbouring States be institutionalized
in order to avoid conflicts in the exercise of jurisdiction by different coastal
States over the same maritime area, depending on whether this is the exclusive
economic zone or the continental shelf. However, the question concerning the
uniform régime for the exclusive economic zone and the continental shelf
certainly did not receive an affirmative answer in the 1982 United Nations
Convention on the Law of the Sea, as reflected in the provisions of that
Convention allowing the co-existence of the parallel régimes of the
exclusive economic zone and the continental shelf. It should be noted that the
Arbitration Tribunal constituted in 1985 by Guinea-Bissau and Senegal preferred,
as implied in the Arbitral Award and directly expressed in Mr. Barberis's
declaration, not to depart from the basic concept entertaining parallel régimes
for the exclusive economic zone and the continental shelf.
19. Much controversy still surrounds the question de lege ferenda
whether the delimitation of exclusive economic zones ought to be identical to
that of the continental shelf or, more fundamentally, whether the new concept of
the exclusive economic zone ought to take the place of or to absorb the
traditional concept of the continental shelf (except for the offshore distance,
it being impermissible for an exclusive economic zone to extend beyond 200 miles
from the shore, whereas a State's continental shelf, depending on the
interpretation of the famous "exploitability" criterion in the 1958
Convention on the Continental Shelf, may extend further), or whether the two régimes
of the exclusive economic zone and the continental shelf would remain existing
in parallel between neighbouring States, but with different lines of
delimitation. If the two régimes are to be merged in a case where the régime
of the continental shelf has already effectively existed, a further question
will still have to be answered, that is, whether or not an existing line of
delimitation for the continental shelf should dictate the line for the new régime
of the exclusive economic zone, or a new line of delimitation to be agreed upon
for exclusive economic zones should automatically entail reconsideration of the
existing line for the continental shelf. A uniform régime covering both
the exclusive economic zone and the continental shelf will remain to be settled.
20. Without taking any position on the question whether the United Nations
Convention on the Law of the Sea is already to be regarded as existing
international law or not, I must point out that that Convention separately
provides practically identical provisions concerning the delimitation of the
areas concerned between the neighbouring States for both the exclusive economic
zone and the continental shelf in parallel, stating that
"[t]he delimitation of [the exclusive economic zone] [the continental
shelf] between States with ... adjacent coasts 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"
(United Nations Convention on the Law of the Sea, Arts. 74 and 83).
One is led to conclude that the delimitation of the line of the exclusive
economic zones or of the continental shelf between neighbouring States, or both,
is, in the first place, a matter for negotiation between the States concerned.
What would be an equitable solution may well be different for the respective
delimitations of the exclusive economic zones and of the continental shelf.