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The Outer Limits of the Continental Shelf Under Customary International Law

Published online by Cambridge University Press:  13 February 2018

Kevin A. Baumert
Kevin A. Baumert*
Affiliation:
Attorney-Adviser, U.S. Department of State.
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Abstract

“Seldom has an apparent major change in international law been accomplished by peaceful means more rapidly and amidst more general acquiescence and approval,” Lauterpacht observed of continental shelf claims nearly seventy years ago. When considered today, this observation merits a caveat, as the question of how far the continental shelf extends into the sea is not yet fully settled. This article explores the customary international law applicable for determining continental shelf limits and also examines the legal procedures used by states to gain international acceptance of those limits.

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Articles
Information
American Journal of International Law , Volume 111 , Issue 4 , October 2017 , pp. 827 - 872
Copyright
Copyright © 2018 by The American Society of International Law 

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References

1 Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, Sept. 28, 1945, 10 Fed. Reg. 12303 (1945) [hereinafter Truman Proclamation].

2 See, e.g., Rothwell, Donald R. & Stephens, Tim, The International Law of the Sea 101 (2010)Google Scholar, citing Lauterpacht, H., Sovereignty over Submarine Areas , 27 Brit. Y.B. Int'l L. 376, 431 (1950)Google Scholar.

3 Scharf, Michael P., Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments 107–22 (2013)CrossRefGoogle Scholar.

4 A White House press release accompanying the Proclamation referred to limits based on water depth: “[g]enerally … no more than 100 fathoms (600 feet) of water … .” 13 Dep't St. Bull. 484 (Sept. 30, 1945).

5 United Nations Convention on the Law of the Sea, Art. 76, opened for signature Dec. 10, 1982, 1833 UNTS 397 [hereinafter LOS Convention].

6 The UN Division for Ocean Affairs and the Law of the Sea (DOALOS) lists 168 parties, including the European Union (http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm).

7 LOS Convention, supra note 5, Art. 1(1) (defining the “Area” as “the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”), Part XI (setting forth provisions pertaining to “The Area”).

8 Id. Arts. 1(2), 133, 137(2) (introducing the International Seabed Authority (ISA) and defining “resources”). The ISA has entered into twenty-seven contracts with entities to undertake deep seabed mineral exploration. International Seabed Authority, at https://www.isa.org.jm/deep-seabed-minerals-contractors.

9 Truman Proclamation, supra note 1.

10 See, e.g., Hydrographic Dictionary, IHO Pub. S-32 (5th ed. 1994).

11 Declaration on the Maritime Zone, Aug. 18, 1952, Chile-Peru-Ecuador, 1006 UNTS 323, at 326–27.

12 On April 29, 1958, the First UN Conference on the Law of the Sea adopted four conventions and an optional protocol. See UN Office of Legal Affairs, at http://legal.un.org/avl/ha/gclos/gclos.html.

13 LOS Convention, supra note 5, preamble.

14 Convention on the Continental Shelf, Apr. 29, 1958, TIAS 5578, 499 UNTS 311 [hereinafter CSC].

15 Id. Art. 1. See also Oxman, Bernard H., The Preparation of Article 1 of the Convention on the Continental Shelf , 3 J. Mar. L. & Com. 245 (1972)Google Scholar.

16 North Sea Continental Shelf (Ger. v. Den.), 1969 ICJ Rep. 3, para. 63, at 39–40 (Feb. 20) [hereinafter North Sea] (“reflecting, or as crystallizing, received or at least emergent rules of customary international law relative to the continental shelf, amongst them the question of the seaward extent of the shelf …”); id., para. 19.

17 Under an extreme interpretation of the exploitability criterion, the jurisdiction of coastal states might eventually extend to the entire ocean floor, in line with their growing technological capacity to exploit seabed resources at greater depths and distances from the coast. This was not, however, the intent of the drafters. See Oxman, supra note 15, at 250–51.

18 GA Res. 2574 (XXIV) (Dec. 15, 1969).

19 On the “package deal,” see infra Section II(2).

20 Informal Single Negotiating Text, Part II, Art. 62, UN Doc. A/CONF.62/WP.8/PartII (1975). See also University of Virginia, Center for Oceans Law and Policy, II UN Convention on the Law of the Sea 1982: A Commentary 848–55 (Nandan, Satya & Rosenne, Shabtai eds., 1993)Google Scholar [hereinafter UVA Commentary] (summarizing the third, fourth, and fifth sessions, 1975 to 1976).

21 See UVA Commentary, supra note 20, at 855–73 (summarizing the sixth through eleventh sessions, 1977–1982).

22 LOS Convention, supra note 5, Annex II, Arts. 2(1), 3(1)(a).

23 See id. Art. 308(1).

24 DOALOS, supra note 6.

25 Charney, Jonathan I., International Agreements and the Development of Customary International Law , 61 Wash. L. Rev. 971, 984 (1986)Google Scholar. See also Roach, J. Ashley, Today's Customary International Law of the Sea , 45 Ocean Dev't & Int'l L. 239 (2014)Google Scholar.

26 For states that are party to both the 1958 and 1982 conventions, Article 311(1) of the 1982 LOS Convention, supra note 5, provides that it “shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958.”

27 Territorial and Maritime Dispute (Nicar. v. Colom.), 2012 ICJ Rep. 624, 666, para. 118. (Nov. 19) [hereinafter Nicaragua v. Colombia I]. The Court considered that “it does not need to decide” the status of paragraphs 2 through 8. Id.

28 U.S. Dep't of State, Office of the Legal Adviser, Cumulative Digest of U.S. Practice in International Law 1981–1988, at 1878–79 (1993), citing Memorandum from Assistant Secretary John D. Negroponte to Deputy Legal Adviser Elizabeth Verville, Nov. 17, 1987 [hereinafter Negroponte Memorandum] (stating “that the delimitation provisions of Article 76 … reflect customary international law and that the United States will use these rules when delimiting its continental shelf and in evaluating the continental shelf claims of other countries” and variously referring to paragraphs 1 to 7 of Article 76). The memo referred to “delimitation”; the correct term under Article 76 is “delineation.”

29 See U.S. Extended Continental Shelf Project, at http://www.continentalshelf.gov/faq/index.htm.

30 This article does not substantively address paragraphs 9 and 10 of Article 76.

31 The author has found the work of the International Law Commission's special rapporteur on the identification of customary international law to be particularly valuable in the preparation of this article. See Report of the International Law Commission, 68th Sess., UN Doc. A/71/10, at 102–06 (2016) [hereinafter ILC Draft Conclusions] and other reports of the special rapporteur, Michael Wood, at http://legal.un.org/ilc/summaries/1_13.shtml.

32 Sender, Omri & Wood, Michael, Custom's Bright Future: The Continuing Importance of Customary International Law , in Custom's Future: International Law in a Changing World 360, 365 (Bradley, Curtis A. ed., 2016)Google Scholar.

33 A nautical mile (M, but sometimes abbreviated “nm”) is equivalent to approximately 1,852 meters or 1.15 miles.

34 Arbitration Between Barbados and Trinidad and Tobago, RIAA, Vol. XXVII, at 147, 208–09, para. 213 (Apr. 11, 2006) [hereinafter Barbados v. Trinidad & Tobago].

35 LOS Convention, supra note 5, Art. 77(1). With respect to substantive continental shelf rights, see also Articles 77(4) (concerning “natural resources”), 78 (legal status of the superjacent waters and air space and the rights and freedoms of other states), 79 (submarine cables and pipelines), 80 (artificial islands, installations and structures), and 81 (drilling).

36 Id. Arts. 77(2), 77(3).

37 Id. Art. 56(1).

38 Case Concerning the Continental Shelf (Libya v. Malta), 1985 ICJ Rep. 13, 55–56, para. 77 (June 3) [hereinafter Libya/Malta]. The 200 M distance criterion in Article 76(1) is now accepted unquestionably as part of customary law and, therefore, this article does not examine the state practice and opinio juris related to that provision.

39 Hutchinson, D.N., The Seaward Limit to Continental Shelf Jurisdiction in Customary International Law , 56 Brit. Y.B. Int'l L. 111, 171 (1985)Google Scholar (stating that thirty-nine states subscribed to this view).

40 Id. at 171–72 (listing thirty-nine states subscribing to this view).

41 North Sea, supra note 16.

42 United Nations, National Legislation & Treaties Relating to the Law of the Sea, UN Doc. ST/LEG/SER.B/16, at 115, 117 (1974) [hereinafter National Legislation].

43 See, e.g., Statement by Amb. C.W. Pinto (Sri Lanka) to Negotiating Group 6, Apr. 5, 1979, reprinted in Platzöder, 1979, Vol. II, at 825 et seq. (stating that the Court in North Sea signaled “the ‘continental margin’ as the geomorphological feature by reference to which resource jurisdiction would henceforth be demarcated”). The validity of this interpretation, however, has been questioned. See, e.g., Hutchinson, supra note 39, at 146–59.

44 Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal, Judgment, paras. 434, 435, 437 (ITLOS Mar. 14, 2012) [hereinafter Bay of Bengal].

45 See, e.g., Beesley Statement, on Behalf of Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New Zealand, and Norway, UN Doc. A/CONF.62/SR.46 (1974), in I Official Records of the Third United Nations Conference on the Law of the Sea 203 [hereinafter Official Records] (stating that “The sponsors [of the Working Paper being introduced by Canada setting forth the continental margin criterion] had drawn on the language of the [North Sea case and] … believed that it would be unrealistic and inequitable to ignore the legal position of coastal States which had long ago established their sovereign rights to the edge of the continental margin through State practice, legislation, the issue of permits”). See also id., Statement of Chile (a co-sponsor) (stating that the proposal “reflected the criterion of exploitability, which was part of customary international law, and the acquired rights it connoted”); Hutchinson, supra note 39, at 188.

46 Australia, for instance, fused the North Sea’s notion of natural prolongation to the 1958 Convention, saying that both concepts “point to the outer edge of the margin as the limit of the coastal State's rights.” National Legislation, supra note 42.

47 Special Study on United Nations Suboceanic Lands Policy, Hearings before the Senate Comm. on Commerce, 91st Cong., at 90–91 (1969) [hereinafter Special Senate Study] (National Petroleum Council statement). Representatives of various legal and industry associations similarly conveyed the view that “the entire submerged continental land mass, including the Shelf, slope, and portions of the continental rise” fell within national jurisdiction. Rep. by the Spec. Subcomm. on Outer Continental Shelf to the Comm. on Interior and Insular Affairs, U.S. Senate, 91st Cong., at 9–10, and Appendices A (ABA), E (American Branch, ILA), and E-1 (NPC) (Comm. Print 1970).

48 Special Senate Study, supra note 47, at 61–62 (“The Department of Commerce's position is that article 1 [of the 1958 Convention] should be interpreted to go out as far as we can technically exploit which might be to the continental margin … . I don't feel we would want to go beyond the continental margin … .”).

49 Statement About United States Oceans Policy, May 23, 1970, Public Papers of the Presidents, at 454–56 (1971).

50 102d Plenary meeting, IV Official Records 57, UN Doc. A/CONF.62/SR.102 (1978) (Mexico, speaking on behalf of a group of coastal states).

51 LOS Convention, supra note 5, Art. 82 (referring to “payments or contributions” from exploitation being distributed through the ISA “to States Parties to this Convention, on the basis of equitable sharing criteria”). Although the legal status of Article 82 is not addressed in this article, its entry into the corpus of customary international law faces some of the same obstacles as Article 76(8), discussed in Section IV infra, including a lack of relevant state practice and its institutional nature (pertaining to the ISA).

52 UVA Commentary, supra note 20, at 834–35 (stating that these provisions “embody the essence of the final compromise that was … based on the acceptance of the continental margin as the outer limit of the continental shelf beyond the exclusive economic zone, coupled with the system of revenue sharing embodied in article 82”); see also id. at 848–55.

53 North Sea, supra note 16, paras. 64, 65, 71, 73. See also ILC Draft Conclusions, supra note 31, at 102–06.

54 Hutchinson, supra note 39, at 173 (also citing Buzan that forty-nine states adhered to this view by the end of 1974).

55 See 1970s-era enactments of coastal states, cited infra.

56 See, e.g., Special Senate Study, supra note 47, “Survey of National Practice,” at 80–84.

57 See UVA Commentary, supra note 20, at 848–55 (summarizing the third, fourth, and fifth sessions, 1975–1976).

58 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246, 294, para. 94 (Oct. 12).

59 Libya/Malta, supra note 38, at 33, para. 34 (referring to the validity of the 200 M distance criterion “where the continental margin does not extend as far as 200 miles from the shore”).

60 Nicaragua v. Colombia I, supra note 27, para. 118.

61 Suarez, Suzette V., The Outer Limits of the Continental Shelf: Legal Aspects of Their Establishment 181 (2008)CrossRefGoogle Scholar.

62 Tanaka, Yoshifumi, The International Law of the Sea 140 (2012)CrossRefGoogle Scholar.

63 Golitsyn, Vladimir, Continental Shelf Claims in the Arctic Ocean: A Commentary , 24 Int'l J. Marine & Coastal L. 401, 405 (2009)CrossRefGoogle Scholar. The author, however, also refers to the “overlapping continental shelves” of the United States and Canada “both within and beyond 200 nautical miles.” Id. at 403 (emphasis added).

64 193d Plenary Meeting, Closing Statement by the President, XVII Official Records 135–36, UN Doc. A/CONF.62/SR.193 (1982). This statement was made in light of Article 82 of the Convention (see supra note 51 and corresponding text); Koh considered that non-parties would not participate in “revenue-sharing on the continental shelf beyond 200 miles.” Id. Other authors take a similar view, for instance that a non-party asserting continental shelf beyond 200 M should make international payments or contributions that are the same or similar to what it “would be obliged to provide under article 82 if it were a state party.” Magnússon, B.M., Can the United States Establish the Outer Limits of its Extended Continental Shelf Under International Law? , 48 Ocean Dev't & Int'l L. 1, 11 (2017)Google Scholar. See also, Mossop, Joanna, The Continental Shelf Beyond 200 Nautical Miles: Rights and Responsibilities 86–91 (2016)Google Scholar.

65 See, e.g., McDorman, Ted L., The Entry into Force of the 1982 LOS Convention and the Article 76 Outer Continental Shelf Regime , 10 Int'l J. Marine & Coastal L. 165, 167 (1995)CrossRefGoogle Scholar; Treves, Tullio, Remarks on Submissions to the Commission on the Limits of the Continental Shelf in Response to Judge Marotta's Report , 21 Int'l J. Marine & Coastal L. 363, 363 (2006)CrossRefGoogle Scholar; Crawford, James, Brownlie's Principles of Public International Law 274 (8th ed. 2012)CrossRefGoogle Scholar. See also Rothwell & Stephens, supra note 2, at 106 (“Article 76(1), (2), and (3), has almost certainly now become part of customary international law.”); the authors expressed no view on paragraphs 4 to 7, though Article 76(2) refers to those subsequent paragraphs.

66 Statute of the International Court of Justice, Art. 38(1)(b), June 26, 1945, 59 Stat. 1031, 8 UNTS 993.

67 North Sea, supra note 16, at 44–45, paras. 74, 77. See also, ILC Draft Conclusions, supra note 31, at 97.

68 North Sea, supra note 16, at 43, paras. 73–74. In North Sea, the Court considered states whose interests are “specially affected” to be those with coasts. Id. Here, the analysis focuses on states with coasts, although it may be said that even landlocked states have some interests in Article 76, considering that it affects the geographic extent of the deep seabed Area, which is the common heritage of mankind. LOS Convention, supra note 5, Arts. 134(3), 136.

69 North Sea, supra note 16, at 39–41 and 43, paras. 63–66, 72.

70 Id. at 45, para. 77.

71 ILC Draft Conclusions, supra note 31, at 103 (brackets added).

72 State practice is generally not included here if it preceded the LOS Convention's entry into force by less than one year. Such enactments may have been made in full anticipation of the Convention's entry into force.

73 ILC Draft Conclusions, supra note 31, at 98 (stating that, “when States act in conformity with a treaty by which they are not bound, or apply conventional obligations in their relations with non-parties to the treaty, this may evidence the existence of acceptance as law …”). See also id. at 106.

74 For a discussion of forms of state practice and opinio juris, see generally, id., at 91–92,d 99–101 (draft conclusions 6 and 10). The three categories used here are not overly precise and may overlap and blend into one another. Enactments, for instance, may include declaratory statements regarding customary international law and/or be supported by statements made in a diplomatic context. See, e.g., Costa Rica, infra notes 178 and 187.

75 Continental Shelf Act, No. 28 of 3 November 1964, as Amended by Territorial Sea and Exclusive Economic Zone Act 1977, Act No. 28 of 26 September 1977, § 2(1) (New Zealand) (defining the continental shelf with reference to the “outer edge of the continental margin”), reprinted in UN Office of Ocean Affairs & the Law of the Sea, The Law of the Sea: National Legislation on the Continental Shelf 175, UN Sales No. E.89.V.5 (1989).

76 Maritime Areas Act, § 6 (1982) (Antigua and Barbuda) (defining the continental shelf in accordance with Article 76(1) and also 76(3)). Unless otherwise noted, national legislation is available from DOALOS’s maritime claims database, at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES.

77 Act No. 23.968, Art. 6 (1991) (Argentina) (defining the continental shelf with reference to the “outer edge of the continental margin”).

78 Territorial Waters and Maritime Zones Act, § 7 (1974) (Bangladesh) (defining the continental shelf with reference to “the outer limits of the continental margin bordering on the ocean basin or abyssal floor”).

79 See infra note 177.

80 Oceans Act, § 17 (1996) (Canada) (defining the continental shelf in accordance with Article 76(1) and 76(3)). Canada became a party to the Convention in 2003.

81 Chile statement, infra note 181. See also, Final Act, infra note 198.

82 Continental Shelf Amendment Act, amending the Continental Shelf Act 1964, § 2 (1977) (Cook Islands) (defining the continental shelf with reference to the “outer edge of the continental margin”).

83 See infra note 178.

84 Act No. 573 (amending Act No. 186 of 1967), Art. 7 (1977) (Dominican Republic) (defining the continental shelf with reference to the “outer edge of the continental terrace”).

85 Ecuador's enactment, infra note 182. See also, Final Act, infra note 198.

86 Territorial Sea and Maritime Boundaries Act, § 10 (1989) (Grenada) (defining the continental shelf in accordance with Article 76(1) and 76(3)).

87 Maritime Boundaries Act, § 9 (1977) (Guyana) (defining the continental shelf with reference to the “outer edge of the continental margin”).

88 Law No. 41, Art. 5 (1979) (Iceland) (defining the continental shelf with reference to the “outer edge of the continental margin”). See also Iceland's enactment of 1985, infra note 183.

89 Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, § 6 (1976) (India) (defining the continental shelf with reference to the “outer edge of the continental margin”).

90 See infra note 184.

91 Ordinance 88–120, Art. 4 (1988) (Mauritania) (defining the continental shelf with reference to the “outer edge of the territorial [continental] margin”).

92 Maritime Zones Act, § 5 (1977) (Mauritius) (defining the continental shelf with reference to the “outer edge of the continental margin”).

93 Federal Act Relating to the Sea, Art. 62 (1986) (Mexico) (defining the continental shelf with reference to the “outer edge of the continental margin”).

94 Law 4/96, Art. 13 (1996) (Mozambique) (defining the continental shelf with reference to the “outer edge of the continental margin”), available at http://faolex.fao.org/docs/pdf/moz22054.pdf (English translation by author).

95 Territorial Sea and Maritime Zones Law, § 12 (1977) (Myanmar) (defining the continental shelf with reference to the “outer edge of the continental margin”).

96 Namibia's enactment, infra note 179.

97 Act No. 11 Pertaining to Petroleum Activities, § 4(f) (1985) (Norway) (defining the continental shelf with reference to the “natural prolongation …, but no less than 200 nautical miles from the base lines …, and not beyond the median line in relation to other states”). See also statements of Norway, infra note 119.

98 Territorial Waters and Maritime Zones Act, § 5 (1976) (Pakistan) (defining the continental shelf with reference to the “outer edge of the continental margin”).

99 Federal Law on the Continental Shelf of the Russian Federation, Art. 1 (1995) (defining the continental shelf in accordance with Article 76(1) and 76(3)). Russia became a party to the Convention in 1997.

100 Maritime Areas Act, § 7 (1984) (St. Kitts and Nevis) (defining the continental shelf in accordance with Article 76(1), (3)).

101 Maritime Areas Act, § 7 (1984) (St. Lucia) (defining the continental shelf in accordance with Article 76(1), (3)).

102 Act No. 85-14, Art. 6 (1985) (Senegal) (defining the continental shelf with reference to the “outer edge of the continental margin”).

103 Maritime Zones Act, § 11 (1999) (Seychelles) (defining the continental shelf with reference to the “outer edge of the continental margin”).

104 South Africa's enactment, infra note 180.

105 Maritime Zones Law No. 22, § 6 (1976) (Sri Lanka) (defining the continental shelf with reference to the “outer edge of the continental margin”).

106 Law No. 28, Art. 26 (2003) (Syria) (defining the continental shelf with reference to the “outer edge of the continental margin”). Syria is not a party to the LOS Convention.

107 Law No. 7/2002, Art. 8 (2002) (Timor-Leste) (defining the continental shelf with reference to the “outer edge of the continental margin”). Timor-Leste acceded to the LOS Convention in 2013.

108 Trinidad and Tobago's enactment, infra note 185.

109 Federal Law No. 19, Art. 17 (1993) (United Arab Emirates) (defining the continental shelf with reference to the “outer edge of the continental margin”). UAE is not a party to the LOS Convention.

110 Maritime Zones Act No. 23, § 8 (1981) (Vanuatu) (defining the continental shelf with reference to the “outer edge of the continental shelf of the continental margin”), UN Office of Ocean Affairs & the Law of the Sea, I The Law of the Sea: Current Developments in State Practice 127, UN Sales No. E.87.V.3 (1987).

111 Ley Orgánica de los Espacios Acuáticos e Insulares, Art. 61 (2002) (Venezuela) (defining the continental shelf with reference to the “outer edge of the continental margin”) (English translation by author). Venezuela is not a party to the LOS Convention.

112 Act No. 45, Art. 2 (1977) (Yemen) (defining the continental shelf with reference to the “outer edge of the continental margin”).

113 Byers explains this dynamic with the concept of reciprocity in international relations, in that states will only claim rights under customary international law “which they are prepared to see generalized … because a generalized right subjects the State to corresponding obligations vis-à-vis other States.” Byers, Michael, Custom, Power and the Power of Rules: International Relations and Customary International Law 90 (1999)CrossRefGoogle Scholar.

114 ILC Draft Conclusions, supra note 31, at 99.

115 Note Verbale, Apr. 29, 2013, from the Permanent Mission of Colombia to the UN addressed to the Secretary-General, UN GAOR, 67th Sess., Doc. No. A/67/852 (2013) (declaring, inter alia, that “[i]n accordance with customary international law, the Republic of Colombia's continental shelf … extend[s] … to the outer edge of the continental margin, or to a distance of 200 nautical miles …”); Nicaragua v. Colombia I, supra note 27, at 666, para. 117 (“Colombia accepts that paragraph 1 of Article 76 reflects customary international law … .”).

116 Canadian statements, infra note 186.

117 France statement, infra note 188.

118 Letter Dated Mar. 4, 1994 from the Minister for Foreign Affairs of Guatemala Addressed to the Secretary-General Concerning the Situation of the Territorial and Maritime Limits Between Guatemala and Belize, in UN Office of Ocean Affairs & the Law of the Sea, IV The Law of the Sea: Current Developments in State Practice 155–56, UN Sales No. E.95.V.10 (1995) (The letter is a “declaration regarding Guatemala's official position on the matter” and states Guatemala's view as a then-non-party to the Convention that its continental shelf extends “to the outer edge of the continental margin.”).

119 Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den. v. Nor.) [hereinafter Jan Mayen], Counter-Memorial of Norway, 1993 ICJ Rep. 38, 19, para. 66 (May 11, 1990) (“Along the west coast of mainland Norway, the continental shelf in some areas continues to the outer edge of the continental margin considerably beyond 200 miles from land.”). See also id. at 171–72, paras. 601–03 (objecting on scientific and not legal grounds regarding “the location of a ‘continental margin’ more than 200 nautical miles from the coast of Greenland”).

120 Communication Dated Mar. 9, 2012 Addressed to the UN Secretary-General Concerning the Submission of Guyana to the Commission on the Limits of the Continental Shelf (CLCS) (“Venezuela, in accordance with customary international law, and irrespective of the fact that it is not a party to the [LOS Convention], has a right to the continental shelf extending to the outer edge of the continental margin … .”).

121 Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf, para. 4 (1977) (Vietnam) (defining the continental shelf with reference to the “outer edge of the continental margin”).

122 National Legislation, supra note 42 (Australia statement).

123 Letter Dated Mar. 23, 1994 from the Hon. Dean Oliver Barrow [to the UN Secretary-General], in Current Developments, supra note 118, at 153–54 (stating, in reference to a letter from Guatemala, supra note 118, that “Belize welcomes Guatemala's acknowledgement, as a non-party to the 1982 [Convention], of the evolution into customary international law of the Convention's definition and regulation of the continental shelf. Belize notes Guatemala's incorporation of the language of articles 76 and 77 of the Convention … .”).

124 See infra note 187.

125 Jan Mayen, supra note 119, Memorial of Denmark, at 64, para. 221 (July 31, 1989) (“A number of the rules adopted in the Convention on the Law of the Sea, 1982, must be regarded as innovations within the sphere of international law. Other rules of the Convention must be considered as a codification based on customary international law being developed before or during UNCLOS III; this applies inter alia to the provisions relating to … the continental shelf (Article 76.1 and Article 77).”) (emphases added).

126 Diplomatic Protest by Germany in 1986 of the Continental Shelf Declaration of Chile (infra note 181), reprinted in Tullio Treves, Codification de Droit International et Pratique des États dans le Droit de la Mer, 223 Recueil des Cours 97 (1990) (stating that Chile has not proven the existence of the “special conditions” for continental shelf beyond 200 miles that are found in Article 76). Treves considers that Germany's 1980s-era diplomatic protests of enactments by Chile and Ecuador have added legal significance in the transformation of Article 76 into customary law because Germany is not among the countries able to assert continental shelf beyond 200 M. Id. at 100. He also notes, however, some ambivalence in Germany's protest, since it notes that the LOS Convention is not yet in force and also references the CLCS. Id.

127 Case Concerning Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hon.), Counter-Memorial of Honduras, 2007 ICJ Rep. 659, at 59–60, paras. 4.5–.7 (Mar. 21, 2002) (referring to the assertion made by Nicaragua in its Memorial that “the principles laid down in the 1982 Convention in cases of maritime delimitation … have now acquired customary value and form part of general international law,” Honduras states that this is an “obvious point,” cites the Court's 1982 judgment in Libya/Malta, and adds “[this] is, in particular, the case for [various articles relevant to delimitation, including Article] 76 … referring to … the definition of the Continental Shelf”).

128 Continental Shelf (Tunis. v. Libya), Counter-Memorial of Libya, 1982 ICJ Rep. 18, at 162, para. 404 (Feb. 2, 1981) (stating “Article 76 of the [draft LOS Convention], by defining the continental shelf in terms of the natural prolongation of land territory, is not enunciating a new trend in the law of the sea but is rather codifying the principle of natural prolongation described in the North Sea Continental Shelf Cases”) [hereinafter Tunisia/Libya]. See also Libya/Malta, supra note 38, Memorial of Libya, at 89, paras. 6.20, 6.21 (Apr. 26, 1983) (referring to Article 76(1), and then stating “In sum, therefore, it can be asserted that ‘natural prolongation’ remains the fundamental basis of legal title”).

129 Libya/Malta, supra note 38, Counter-Memorial of Malta, at 266, para. 61 (Oct. 26, 1983) (stating that the “definition in Article 76 … must in this respect be regarded as reflecting the present state of customary international law.”).

130 Nicaragua statement, infra note 189.

131 Peru statement, infra note 190.

132 Trinidad and Tobago statement, infra note 191.

133 Tunisia/Libya, supra note 128, Memorial of Tunisia, at 165, para. 6.45 (May 27, 1980) (“[T]he continental shelf of a State in the legal sense is the natural prolongation … [that] encompasses the continental margin, that is to say the shelf, the slope and the rise.”) (English translation by the author).

134 Negroponte Memorandum, supra note 28. For U.S. practice, see text at notes 219 (1980s practice) and 221 and 222 (modern practice), infra.

135 Uruguay declaration made upon signature of the Convention (Dec. 10, 1982): “Uruguay reaffirms that, as stated in article 76, the continental shelf is the natural prolongation of the territory of the coastal State to the outer edge of the continental margin.” Emphases added to indicate previous acceptance not in connection with the declaration made upon ratification of the Convention.

136 Bay of Bengal, supra note 44, para. 397.

137 Because the continental margin criterion in Article 76(1) may not be the only legal basis for continental shelf entitlement beyond 200 M, other circumstantial evidence has also been considered to discern reliance on Article 76. This includes commentary associated with a boundary treaty.

138 Agreement Between the Government of the Republic of Indonesia and the Government of Papua New Guinea Concerning the Maritime Boundary Between the Republic of Indonesia and Papua New Guinea and Cooperation on Related Matters, Dec. 13, 1980, in International Maritime Boundaries 1767, 1770 (J.L. Charney & L.M. Alexander eds., 1993) [hereinafter IMB], at 1039, 1045–46, Rpt. No. 5–10, preamble (“[t]aking account of the recent developments in the Law of the Sea regarding the regime of the continental shelf and exclusive economic zone”), Art. 1 (defining continental shelf in accordance with Article 76(1)), and Art. 2(3) (referring to the possibility of “to extend such boundary further by drawing straight lines, on the basis of the principle specified in paragraph 1 of this Article … up to the outer limits of [the parties’] respective continental shelves …”).

139 See infra note 194.

140 Agreement Between the United States of America and The Union of Soviet Socialist Republics on the Maritime Boundary, June 1, 1990, entered into force provisionally June 15, 1990, S. Treaty Doc. No. 101–22, 29 ILM 941 (1990). The agreement extends beyond 200 M in the Bering Sea and Arctic Ocean.

141 See infra note 195.

142 Agreement on Marine Delimitation Between the Government of Australia and the Government of the French Republic, Jan. 4, 1982, in IMB, infra note 138, at 905, 906, 911–12, Rpt. No. 5-1, preamble (“taking into consideration the work of the United Nations Third Conference on the Law of the Sea”), Art. 1 (establishing a maritime boundary beyond 200 M, from points R18 to R22), Art. 3(1) (providing that the treaty boundary “do[es] not prejudice the respective positions of each of the two States with respect to the outer edge of the continental shelf”).

143 Treaty Between the Government of the United Mexican States and the Government of the United States of America on the Delimitation of the Continental Shelf in the Western Gulf of Mexico Beyond 200 Nautical Miles, June 9, 2000, 2143 UNTS 417; Treaty Between the Government of the United States of America and the Government of the United Mexican States on the Delimitation of the Maritime Boundary in the Eastern Gulf of Mexico, Jan. 18, 2017 (not in force).

144 See infra note 197.

145 See infra note 198.

146 Although this factor may contribute to a diminished quantity of state practice, the fact that some such states do accept the continental margin criterion remains legally significant. See infra note 150 and corresponding text.

147 CSC, supra note 14, Art. 2(3); LOS Convention, supra note 5, Art. 77(3); and North Sea, supra note 16, at 39–41, paras. 63, 66.

148 See, e.g., infra note 151 and corresponding text.

149 Acceptance of Article 76 is further evidenced by the Ilulissat Declaration, signed in May 2008 by the five coastal states bordering on the Arctic Ocean. This Declaration states that “the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf [and other matters]. We remain committed to this legal framework … .” The phrase “law of the sea” cannot be construed strictly as the LOS Convention as treaty law, since the United States has no treaty relations with other Ilulissat signatories.

150 See ILC Draft Conclusions, supra note 31, at 86 (noting that “practice of a State that goes against its clear interests … is more likely to reflect acceptance as law”). See also Treves's observations with respect to Germany, supra note 126.

151 The Bahamas, Denmark, Malaysia, Nigeria, Papua New Guinea, the Philippines, and Portugal, for instance, appear to maintain legislation based on Article 1 of the 1958 Convention, yet made submissions to the CLCS pursuant to Article 76. See DOALOS, at http://www.un.org/Depts/los/clcs_new/commission_submissions.htm.

152 The terms “natural prolongation” and “continental margin,” as used in Article 76, “refer to the same area.” Bay of Bengal, supra note 44, para. 434. Enactments of Bulgaria, Cyprus, Iran, and Qatar refer to “natural prolongation.”

153 See, e.g., Malgosia Fitzmaurice, Third Parties and the Law of Treaties, 6 Max Planck Y.B. of UN L. 37, 126–27 (2002).

154 North Sea, supra note 16, at 43, para. 72 (considering the ability to make reservations to Article 6 “does add considerably to the difficulty … [and would] seem to deny to the provisions of Article 6 the same norm-creating character as, for instance, Articles 1 and 2 possess”). See also id. at 39–41, paras. 63, 66.

155 LOS Convention, supra note 5, Art. 309.

156 This criterion is widely accepted as part of customary law. See, e.g., Libya/Malta, supra note 38.

157 For example, for the limit line to extend 100 kilometers from the foot of the slope requires that the sediment at that location be 1 kilometer thick; thicker sediment means a more seaward limit.

158 See UVA Commentary, supra note 20, at 848–50, 857, 868. The Evensen Group was an informal group of experts convened by Norwegian Ambassador Jens Evensen.

159 LOS Convention, supra note 5, Arts. 1(1) (defining the Area), 134(3) (clarifying that the limits of the Area are set forth in Part VI concerning the continental shelf), and 136 (providing that “[t]he Area and its resources are the common heritage of mankind”).

160 186th Plenary Meeting, XVII Official Records 24, UN Doc. A/CONF.62/SR.186 (1982).

161 See, e.g., Oxman, supra note 15, at 252–53 (citing the 1966 edition of the U.S. Naval Oceanographic Office, Glossary of Oceanographic Terms, defining “continental margin” as “the continental shelf, slope, and rise”).

162 189th Plenary Meeting, XVII Official Records 79, UN Doc. A/CONF.62/SR.189 (1982).

163 Note by the Secretariat, XVII Official Records 244, UN Doc. A/CONF.62/WS/37 and Add.1-2 (1983).

164 Those that consider paragraph 1 to lack customary international law status, a fortiori, would seem to hold the same view of paragraphs 2 to 7. See Suarez, Tanaka, and Golitsyn, supra notes 61–63, and corresponding text.

165 Kwiatkowska, Barbara, Creeping Jurisdiction Beyond 200 Miles in the Light of the 1982 Law of the Sea Convention and State Practice , 22 Ocean Dev't & Int'l L. 153, 157–58 (1991)Google Scholar.

166 McDorman, Entry into Force, supra note 65, at 168.

167 Treves, Remarks on Submissions to the Commission, supra note 65, at 363 (2006). See also Treves, Codification, supra note 126, reaching similar conclusions.

168 A.G. Oude Elferink, The Outer Limits of the Continental Shelf Beyond 200 Nautical Miles Under the Framework of Article 76 of the United Nations Convention on the Law of the Sea (LOSC), at 10–11 (Ocean Policy Research Foundation, 2008).

169 Hutchinson, supra note 39, at 188.

170 Moore, J.N., Customary International Law After the Convention , in The Developing Order of the Oceans 41, 43 (Krueger, Robert B. & Riesenfeld, Stefan A. eds., 1985)Google Scholar.

171 Clingan, Thomas A. Jr., The Law of the Sea in Prospective: Problems of States Not Parties to the Law of the Sea Treaty , 30 German Y.B. Int'l L. 101, 111 (1987)Google Scholar.

172 Brownlie, Ian, Principles of Public International Law 223 (4th ed. 1990)Google Scholar.

173 Crawford, supra note 65.

174 Nicaragua v. Colombia I, supra note 27, at 666, para. 118. In related proceedings, Judge Robinson later remarked that the parties to a dispute could apply paragraphs 2 to 7, but “there is no general agreement that they form part of customary international law.” Question of the Delimitation of the Continental Shelf Beyond 200 Nautical Miles (Nicar. v. Colom.) [hereinafter Nicaragua v. Colombia II], Decl. of Judge Robinson, para. 14 (Int'l Ct. Justice Mar. 17, 2016).

175 State practice and opinio juris is not assessed for each individual provision within paragraphs 2 to 7. Because these provisions are all closely interrelated, evidence relating to any single one of these provisions could be considered relevant to the entirety of paragraphs 2 to 7. For instance, paragraph 2 refers to paragraphs 4 to 6; paragraph 4 refers to paragraph 7; paragraphs 5 and 6 cannot be implemented without implementing paragraphs 4 and 7; and paragraph 6 refers to paragraph 5. Evidence related solely to paragraph 3, however, is not considered evidence related to paragraphs 2, 4, 5, and 7. Paragraph 3 provides a general definition of the continental margin that largely pre-dates the Convention. See Glossary of Oceanographic Terms, cited in Oxman, supra note 161.

176 See Submissions, supra note 151.

177 Law No. 8.617, Art. 11 (1993) (Brazil) (referring to the continental margin criterion in Article 76(1) and also providing that “[t]he outer limits of the continental shelf will be established in accordance with article 76”). Brazil's statute was enacted on January 4, almost two years prior to entry into force of the Convention for Brazil.

178 Decree 18581-RE, para. 6 (1988) (Costa Rica) (“The regulations of the Convention that refer to the zones of national jurisdiction … reflect contemporary International practice and have been considered to derive from prevailing international customary law.”).

179 Act No. 3, § 6 (1990) (Namibia) (“The continental shelf as defined in the [1982 LOS] Convention … shall be the continental shelf of Namibia.”).

180 Maritime Zones Act, § 8 (1994) (South Africa) (“The continental shelf as defined in article 76 of the United Nations Convention on the Law of the Sea … shall be the continental shelf of the Republic.”). South Africa acceded to the LOS Convention on Dec. 23, 1997.

181 Declaration by the Ministry of Foreign Affairs (1985) (Chile) (referring to a 350 M limit as applicable to the continental shelf of Easter Island and Sala y Gomez Island).

182 Declaration on the Continental Shelf (1985) (Ecuador) (referring to the depth constraint in paragraph 5 of Article 76—“a distance of 100 miles measured from the 2,500 metre isobath”—as applicable to the continental shelf of Ecuador's Galápagos Islands).

183 Regulation No. 196, Arts. 2, 3 (1985) (Iceland) (referring to “segments” of the continental shelf that are “defined by the 350 nautical mile distance limit” of paragraph 5 of Article 76 and justifying this by also stating that the continental shelf limits extend beyond that limit “if defined on the basis of the foot of the slope”).

184 Law No. 85-013, Art. 7 (1985) (Madagascar) (defining the continental shelf limit in part with paragraph 5 of Article 76, as “100 nautical miles from the 2,500-metre isobath”); Act No. 99-028 (1999) (defining the continental shelf in accordance with the continental margin criterion in Article 76(1) and with reference to provisions in Article 76 paragraphs 2 to 6), reprinted in DOALOS, 56 Law of the Sea Bull. 67 (2005). Madagascar became a party to the Convention in 2001.

185 Act No. 43 of 1969, as amended in 1986, § 2 (1986) (Trinidad and Tobago) (providing that the continental margin is “determined in accordance with the provisions of the 1982 United Nations Convention on the Law of the Sea”).

186 See Statement by the Delegation of Canada, XIII Official Records 102, UN Doc. A/CONF.62/WS/4 (1980) (quoting a statement of Canada from May 1975: “Canada does not intend to give up its existing sovereign rights to the edge of the continental margin.” Emphasis added); Memorandum of the Department of External Affairs, Legal Bureau, Mar. 26, 1987, 25 Can. Y.B. Int'l L. 409 (“In our view, elements of [the provision of the Law of the Sea Convention] on delimitation of the continental shelf … probably do reflect current international law.” Brackets in original.); Case Concerning Delimitation of Maritime Areas Between Canada and the French Republic (Can. v. Fr.), 31 ILM 1145, 1171–72 (June 10, 1992) [hereinafter St. Pierre and Miquelon] (Canada disagreed with France's application of the detailed provisions of Article 76, but not their legal availability: “In its Counter Memorial [Canada] states that although the continental margin off Newfoundland generally extends beyond 200 nautical miles, the point at which France is making its claim may, in fact, lie beyond the edge of that margin determined in accordance with Article 76 of the 1982 Convention on the Law of the Sea… . Canada adds that it does not accept the French assertion concerning the location of the outer edge of the continental margin and observes that France itself does not know the location of the outer edge of the margin … .”). Canada became a party to the Convention in 2003.

187 139th Plenary meeting, XIV Official Records 66, UN Doc. A/CONF.62/SR.139 (1980) (expressing the view “that the legal regime which now governed … the continental shelf [reflected in the draft convention] formed part of customary international law and was already binding upon all States …”).

188 St. Pierre and Miquelon, supra note 186, at 1171, para. 75 (citing France's Memorial, the Court states: “Invoking Article 76, para. 4 a) ii) of the 1982 Convention on the Law of the Sea, France claims rights over the continental shelf beyond 200 miles, asserting that its shelf in the area extends as far as the outer edge of the continental margin”). France became a party to the Convention in 1996.

189 Nicaragua v. Colombia I, supra note 27, at 666, para. 116 (“Nicaragua states that the provisions of Article 76, paragraphs 1 to 7 … have the status of customary international law.”).

190 Maritime Dispute (Peru v. Chile), 2014 ICJ Rep. 3, 65, para. 178 (Jan. 27) (referring to Peru's constitutional application of the term “maritime domain” as “consistent with the maritime zones set out in the 1982 Convention”). See also Memorial of Peru, at 260, para. 7.25 (Mar. 20, 2009) (referring to “the customary rule codified in Article 76 of the 1982 Convention …”).

191 Barbados v. Trinidad & Tobago, supra note 34. Although the governing law in these proceedings was the Convention and not customary law, Trinidad and Tobago indicated acceptance of the detailed delineation provisions of Article 76 as customary international law. “With respect to the area it claims beyond 200 nm from its coast … , Trinidad and Tobago argues that pursuant to Articles 76(4)–(6) of UNCLOS, coastal States have an entitlement to the continental shelf out to the continental margin. In addition, with reference to the specific area beyond its EEZ, but within 200 nm of Barbados, Trinidad and Tobago contends: ‘Under general international law as well as under the 1982 Convention, claims to continental shelf are prior to claims to EEZ.’ Trinidad and Tobago argues that the older regime of the continental shelf cannot be subordinated to the later regime of the EEZ.” Id., paras. 174–75.

192 Negroponte Memorandum, supra note 28; Roach, J.A. & Smith, R., Excessive Maritime Claims 194–97 (3d  ed. 2012)CrossRefGoogle Scholar (reprinting U.S. diplomatic protests of enactments of Chile and Ecuador, supra notes 181, 182). See also, text following note 219, infra. For modern U.S. practice, see text at notes 221 and 222, infra.

193 Nicaragua v. Colombia I, supra note 27, at 666, para. 117.

194 Agreement Between the Republic of Ireland and the United Kingdom of Great Britain and Northern Ireland Concerning the Delimitation of the Continental Shelf Between the Two Countries, Nov. 7, 1988, in IMB, infra note 138, at 1770, Rpt. No. 9-5 (“Point 94 was chosen according to the criterion of the foot of the slope plus 60 n.m.; Point 132 according to that of the 2500 meters isobath plus 100 n.m., thereby taking into account Article 76 … .”). See also DOALOS, Law of the Sea: Practice of States at the Time of Entry Into Force of the United Nations Convention on the Law Of The Sea 141 (1994) (“The continental shelf delimitation line agreed between Ireland and the UK in 1988 was apparently fixed on the basis of the criteria in article 76, paragraphs 4 and 5 of the Convention.”).

195 Treaty Between the Republic of Trinidad and Tobago and the Republic of Venezuela on the Delimitation of Marine and Submarine Areas, Apr. 18, 1990, in IMB, supra note 138, at 675, 686, Rpt. No. 2-13(3). Art. II(2) states that “[b]oth parties reserve the right, in case of determining that the outer edge of the continental margin is located closer to 350 nautical miles from the respective baselines, to establish and negotiate their respective rights up to this outer edge in conformity with the provisions of International law … .” According to the accompanying report, “[t]his may be the first agreement in the world whereas the edge of the margin was calculated on the basis of the thickness of the sedimentary rocks as equal to 1 percent of the shortest distance from the slope, and whereby the potential extension of the boundary to a point close to the 350-n.m. limit (LOS Convention, Art. 76, No. 4 and 5) was virtually pre-empted by the parties … .” Id. at 681. Venezuela is a non-party to the Convention.

196 Other boundary treaties cited in Part III of this article may also have been developed using paragraphs 2 to 7, although evidence to this effect does not appear to be publicly available.

197 Treaty Between the United States of America and the Republic of Cuba on the Delimitation of the Continental Shelf in the Eastern Gulf of Mexico Beyond 200 Nautical Miles, Jan. 18, 2017 (not in force) (preamble, “Affirming that the provisions of international law pertaining to the seaward extent of the continental shelf are reflected in Article 76 of the 1982 United Nations Convention on the Law of the Sea”).

198 Final Act of the Fourth Special Antarctic Treaty Consultative Meeting on Antarctic Mineral Resources, 27 ILM 859, 865–66 (1988) (stating Article 5(3) of the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities, which refers to “the geographic extent of the continental shelf as the term continental shelf is defined in accordance with international law,” would be “determined by reference to all the criteria and rules embodied in paragraphs 1 to 7 of Article 76 of the [LOS Convention].”). Consultative Parties include Argentina, Australia, Belgium, Brazil, Chile, China, France, German Democratic Republic, Federal Republic of Germany, India, Italy, Japan, New Zealand, Norway, Poland, South Africa, USSR, United Kingdom, United States, and Uruguay. The Final Act also expresses the agreement of thirteen Contracting Parties to the Antarctic Treaty, namely Bulgaria, Canada, Czechoslovakia, Denmark, Ecuador, Finland, Greece, Republic of Korea, Netherlands, Papua New Guinea, Peru, Romania, and Sweden.

199 See supra, paragraph corresponding to notes 146 to 148.

200 LOS Convention, supra note 5, Art. 76(7).

201 Nicaragua v. Colombia I, supra note 27, Counter Memorial of the Republic of Colombia, at 306, para. 4.

202 Nicaragua v. Colombia I, supra note 27, at 666, para. 117, quoting from Written Reply of the Republic of Colombia to the Question Put by Judge Bennouna (May 10, 2012).

203 See supra note 182. Ecuador became a Convention party in 2012.

204 Bay of Bengal, supra note 44, para. 437.

205 Id., para. 434. See also, CLCS, Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by the United Kingdom of Great Britain and Northern Ireland in Respect of Ascension Island on 9 May 2008, at 6 (stating that the “outer edge of the continental margin” (referred to in paragraphs 1 and 3 of Article 76) is “established by applying the provisions of article 76, paragraph 4 …”).

206 Oxman, Bernard H., Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals , in The Oxford Handbook of the Law of the Sea 411 (Rothwell, Donald R., Elferink, Alex G. Oude, Scott, Karen N. & Stephens, Tim eds., 2015)Google Scholar.

207 LOS Convention, supra note 5, preamble (stating that “the problems of ocean space are closely interrelated and need to be considered as a whole”).

208 Id.

209 See, e.g., China's Exclusive Economic Zone and Continental Shelf Act, Arts. 1, 4, 7, 8 (1998) (describing various rights relating to China's EEZ and continental shelf as “exclusive” or “sovereign”).

210 LOS Convention, supra note 5, preamble (referring to “the desire to settle … all issues relating to the law of the sea” and the “codification and progressive development of the law of the sea achieved in this Convention”).

211 See, e.g., GA Res. 45/145, para. 6 (Dec. 14, 1990) (emphasis added).

212 See, e.g., GA Res. 40/63, preambular para. 9 (Dec. 10, 1985).

213 United States Ocean Policy, Statement by the President, Mar. 10, 1983 (stating that the Convention's “provisions with respect to traditional uses of the ocean … generally confirm existing maritime law and practice and fairly balance the interests of all states” and that “the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states”). Part XI of the Convention, concerning the “Area,” was the only part of the Convention rejected by United States following adoption of the Convention in 1982. The U.S. concerns were addressed with the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, adopted July 28, 1994. See Message from the President of the United States Transmitting United Nations Convention on the Law of the Sea (with Annexes and 1994 Agreement), S. Treaty Doc. 103-39 (1994), at VII–VIII, 60–79 (concerning the 1994 Agreement). With respect to the U.S. adherence to international law as reflected in the Convention, including its practice of protesting the excessive claims of foreign states, see generally, Roach & Smith, supra note 192.

214 Executive Summary: A Partial Submission of Data and Information on the Outer Limits of the Continental Shelf of the Republic of the Philippines Pursuant to Article 76(8) of the United Nations Convention on the Law of the Sea, at 3–6 (2009) (referring explicitly to paragraphs 3 to 6); DOALOS, M.Z.N.88.2012.LOS (Maritime Zone Notification), July 12, 2012 (referring to the Philippines’ deposit of information “permanently describing the outer limits of its continental shelf beyond 200 nautical miles … in respect of the Benham Rise”).

215 Presidential Proclamation No. 370 of 20 March 1968 Declaring as Subject to the Jurisdiction and Control of the Republic of the Philippines All Mineral and Other Natural Resources in the Continental Shelf; Philippine Statement on the Benham Rise, Mar. 15, 2017 (referring to the Philippines’ “sovereign rights over the Benham Rise area”).

216 Vienna Convention on the Law of Treaties, Art. 34, May 23, 1969, 1155 UNTS 331 [hereinafter VCLT] (“A treaty does not create either obligations or rights for a third State [i.e., non-party] without its consent.”). In the context of the continental shelf, see Mossop, supra note 64, at 83 (noting that coastal states have asserted continental shelf rights “beyond 200 nm against non-parties … , which indicates that they consider the rights to be based on more than the LOS [Convention]”).

217 ILC Draft Conclusions, supra note 31, at 98. See also id. at 106.

218 LOS Convention, supra note 5, Arts. 77(1), 77(2).

219 Roach & Smith, supra note 192 (reprinting U.S. diplomatic protests of enactments of Chile and Ecuador, supra notes 181, 182).

220 Negroponte Memorandum, supra note 28.

221 U.S. Extended Continental Shelf Project, at http://www.continentalshelf.gov/missions_data/index.htm.

222 U.S. Extended Continental Shelf Project, supra note 29, at http://www.continentalshelf.gov/faq/index.htm.

223 Brown, E.D., 1 Seabed Energy and Minerals: The International Legal Regime 34 (1992)Google Scholar.

224 Treves, Remarks on Submissions to the Commission, supra note 65, at 363.

225 Churchill, R.R. & Lowe, A.V., The Law of the Sea 150 (3d ed., 1999)Google Scholar.

226 LOS Convention, supra note 5, Annex II, Art. 2.

227 Rules of Procedure of the Commission on the Limits of the Continental Shelf, Doc. No. CLCS/40/Rev.1 (2008) [hereinafter Rules of Procedure].

228 Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, Doc. No. CLCS/11 (1999).

229 LOS Convention, supra note 5, Annex II, Art. 2(5). See DOALOS, at http://www.un.org/Depts/los/index.htm.

230 LOS Convention, supra note 5, Art. 76(8); Annex II, Art. 3(1)(a).

231 Id., Annex II, Art. 4.

232 Rules of Procedure, supra note 227, Rules 48(1), 50, 51. See also list of submissions, supra note 151.

233 LOS Convention, supra note 5, Annex II, Art. 3(1)(a).

234 Id., Annex II, Art. 5.

235 Rules of Procedure, supra note 227, Rules 48(1), 51. See also list of submissions, supra note 151.

236 LOS Convention, supra note 5, Annex II, Arts. 3(1)(a), 6(1), 6(3); Rules of Procedure, supra note 227, Rules 51(5), 53.

237 LOS Convention, supra note 5, Art. 76(8).

238 Id. Arts. 76(9), 84.

239 Id., Annex II, Art. 8.

240 McDorman, Ted L., The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World , 17 Int'l J. Marine & Coastal L. 301, 314 (2002)Google Scholar (considering the “most straightforward reading” of the final sentence of paragraph 8 to be an “if/then clause”) (emphasis in original).

241 See, e.g., id. at 313–17; Øystein Jensen, The Commission on the Limits of the Continental Shelf: Law and Legitimacy 92–117 (2014); Magnússon, B.M., The Continental Shelf Beyond 200 Nautical Miles: Delineation, Delimitation, and Dispute Settlement 87–95 (2015)CrossRefGoogle Scholar; International Law Association, Second Report of the Committee on Legal Issues of the Outer Continental Shelf 14–16 (2006) (hereinafter ILA Second Report); Noyes, John, Judicial and Arbitral Proceedings and the Outer Limits of the Continental Shelf , 42 Vand. J. Transnat'l L. 1211 (2009)Google Scholar.

242 LOS Convention, supra note 5, Annex II, Art. 8.

243 See discussion, infra Section V.

244 UVA Commentary, supra note 20, at 848–50. For instance, the Evensen Group's proposal provided that “[t]he coastal State, any State with a particular interest in the matter, or the International [Seabed] Authority, may submit any [coastal state's continental shelf] delineation … for review.” Id. at 850. Regarding the Evensen Group, see supra note 158.

245 UVA Commentary, supra note 20, at 853.

246 126th Plenary meeting, XIII Official Records 20, 24, UN Doc. A/CONF.62/SR.126 (1980) (statements of Austria and Venezuela, respectively).

247 See, e.g., 127th plenary meeting (France), XIII Official Records 30, UN Doc. A/CONF.62/SR.127 (1980); 128th Plenary meeting (Uruguay), XIII Official Records 35–36, UN Doc. A/CONF.62/SR.128 (1980); 137th Plenary meeting (UK), XIV Official Records 49, UN Doc. A/CONF.62/SR.137 (1980). These and other states preferred the phrase “taking into account” instead of “on the basis of,” expressing the view that the latter might undermine the recommendatory role of the Commission.

248 Statement by the Delegation of Canada, XIII Official Records 102, UN Doc. A/CONF.62/WS/4 (1980).

249 See also McDorman, Role of the Commission, supra note 240, at 306 (“One certainty is that it is the coastal state, not the Commission, which has the legal capacity to set the state's outer limit of the continental margin.”) (emphasis in original).

250 See list of submissions, supra note 151.

251 Some statements expressly note the non-customary status of paragraph 8. See, e.g., Canadian Legal Memorandum, supra note 186.

252 These separate opinions addressed the matter because the Court gave rather substantial weight to paragraph 8 in a case that the Court itself stated was decided on the basis of customary law. Nicaragua v. Colombia I, supra note 27, at 666, para. 118; at 669, paras. 126–27. Nicaragua v. Colombia I, supra note 27, Separate Opinion of Judge Donoghue, para. 28 (non-parties have “no duty to make submissions to the Commission.”); Nicaragua v. Colombia I, supra note 27, Decl. of Judge ad hoc Mensah, para. 8 (regarding paragraph 8 as a “treaty obligation” that “cannot be considered as imposing mandatory obligations on all States under customary international law”); Nicaragua v. Colombia I, supra note 27, Decl. of Judge ad hoc Cot, paras. 19–20 (“[i]t is difficult to regard paragraph 8 as an expression of customary law”); Nicaragua v. Colombia II, supra note 174, Decl. of Judge Robinson, para. 11 (Article 76(8) and Annex II “are obviously special, contractual and confined to States parties to UNCLOS.”).

253 See, e.g., McDorman, Role of the Commission, supra note 240, at 308–10 (discussing the “politics of ocean boundary making”). For U.S. practice on protesting excessive maritime claims, see Roach & Smith, supra note 192.

254 LOS Convention, supra note 5, Art. 76(8). That entitlement to continental shelf is not dependent upon the CLCS is further underscored by the Commission's own Rules of Procedure, which provide that the Commission may not review a submission involving a “land or maritime dispute,” unless a disputing state provides its consent. This rule, which is intended to prevent the Commission from prejudicing such disputes, means that some states parties that have made a submission will never receive recommendations. Rules of Procedure, supra note 227, Rule 46; Annex I.

255 Bay of Bengal, supra note 44, para. 408 (citing Art. 77 of the Convention).

256 North Sea, supra note 16, at 23, para. 19 (emphasis added). See also CSC, supra note 14, Art. 2(3); LOS Convention, supra note 5, Art. 77(3) (confirming that continental shelf rights “do not depend on occupation, effective or notional, or on any express proclamation.” This provision was found to reflect customary international law in North Sea, supra note 16, at 39–41, paras. 63, 66). The ICJ, however, has sown confusion on the relationship between continental shelf entitlement and the CLCS process, most notably the Court's 2016 judgment in ongoing proceedings between Nicaragua and Colombia. Nicaragua v. Colombia II, supra note 174, Preliminary Objections (Mar. 17, 2016), at http://www.icj-cij.org/files/case-related/154/154-20160317-JUD-01-00-EN.pdf. Here, a narrow majority appeared to take the view that the reason Nicaragua had failed to establish (in prior proceedings) a continental margin of sufficient breadth to generate an overlap with Colombia's continental shelf was because, at the time of the proceedings, Nicaragua had not yet filed a submission with the CLCS (para. 82). By subsequently filing its submission to the CLCS, according to the majority's reasoning, Nicaragua seemingly cured this defect and “established that it has a continental margin” of sufficient breadth to justify boundary delimitation by the Court (id.). The majority's reasoning is unclear, in part because it is interpreting its prior judgment and not the Convention. To the extent that the Court's majority considers the filing of a submission as establishing entitlement to continental shelf beyond 200 M, the Court is in error. In addition to having no support in the text of the Convention or state practice, this view overlooks the possibility that the Commission, in its review of a submission, may conclude that the coastal state does not have any continental shelf limits beyond 200 M, as was the case for the UK with respect to Ascension Island, supra note 205. See also, Joint Dissenting Opinion of Vice-President Yusuf, Judges Cançado Trindade, Xue, Gaja, Bhandari, Robinson and Judge ad hoc Brower, paras. 55–58 (noting that “information submitted to the CLCS … will not necessarily be regarded as sufficient to establish the existence of an extended continental shelf”); Dissenting Opinion of Judge Donoghue, paras. 47–51 (“the obligation to make a submission to the Commission applies only to the process of delineating the outer limits of the continental shelf. UNCLOS imposes no obligation on a State party to make a submission to the Commission prior to seeking judicial or arbitral delimitation of continental shelf beyond 200 nautical miles of its coast”); Declaration of Judge Gaja, para. 1 (“a coastal State's entitlement to an extended continental shelf does not depend on an assessment by the Commission”); and Declaration of Judge Robinson, paras. 15–18 (referring to the majority's “invention of a procedural condition”).

257 See, e.g., Executive Summary of the Partial Submission of Canada (Atlantic Region), at 3, available at http://www.un.org/Depts/los/clcs_new/submissions_files/can70_13/es_can_en.pdf (“[T]he rights of the coastal State over the continental shelf exist ipso facto and ab initio as reflected in Article 77 of the Convention.”) See also Bay of Bengal, supra note 44, para. 408 (Convention's requirements relating to the CLCS “not imply that entitlement to the continental shelf depends on any procedural requirements.”).

258 For example, Canada (Atlantic) and the United States (Gulf of Mexico) have undertaken hydrocarbon leasing beyond 200 M (although no commercial exploitation has occurred). See e.g., Carolyn Davis, Statoil Touts Two More Discoveries Offshore Eastern Canada in Flemish Pass Basin, Natural Gas Intelligence (June 13, 2016); Bureau of Ocean Energy Management, Western Gulf of Mexico “Lease Sale Information,” including Lease Sale 180 (2001), at https:// www.boem.gov/GOMR-Historical-Lease-Sale-Information. See also, Mossop, supra note 64, at 80 (describing the exercise of continental shelf rights beyond 200 M by Portugal under the OSPAR Convention).

259 Magnússon, B.M., Is There a Temporal Relationship Between the Delineation and the Delimitation of the Continental Shelf Beyond 200 Nautical Miles? 28 Int'l J. Marine & Coastal L. 465, 471–72 (2013)CrossRefGoogle Scholar. See also, 2017 U.S.-Mexico and U.S.-Cuba treaties, supra notes 143 and 197, respectively.

260 See, e.g., Bay of Bengal, supra note 44, para. 446 (referring to “uncontested scientific evidence” in the Bay of Bengal). Other examples include so-called “doughnut holes” of continental shelf beyond 200 M that are surrounded on all sides by 200 M limits (e.g., Barents Sea, Bering Sea, Gulf of Mexico, Sea of Okhotsk).

261 Bay of Bengal, supra note 44, para. 409 (emphases added).

262 McDorman, Role of the Commission, supra note 240, at 303–04. See also, Clingan, supra note 171, at 112; Clingan, T.A. Jr., Dispute Settlement Among Non-parties to the LOS Convention with Respect to the Outer Limits of the Continental Shelf , in The Law of the Sea: What Lies Ahead? 495 (Clingan, T.A. Jr. ed., 1986)Google Scholar; Pedrozo, P., Is It Time for the United States to Join the Law of the Sea Convention? , 41 J. Mar. L. & Com. 151, 152–53 (2010)Google Scholar (the Convention and the Commission's rules “all speak in terms of submissions by ‘coastal states,’ not ‘State Parties’”).

263 A.G. Oude Elferink, The Regime for Marine Scientific Research in the Arctic: Implications of the Absence of Outer Limits of the Continental Shelf Beyond 200 Nautical Miles, at 2 (paper presented at Arctic Science, International Law and Climate Change: Legal Aspects of Marine Science in the Arctic Ocean 2011). See also, Rudiger Wolfrum, Statement at the 73rd Biennial Conference of the International Law Association, The Outer Continental Shelf: Some Considerations Concerning Applications and the Potential Role of the International Tribunal for the Law of the Sea, at 6 (2008) (considering it “doubtful” that non-parties “may submit their data to the Continental Shelf Commission” or that the Commission “would be entitled … to issue recommendations to the coastal State concerned”); Nicaragua v. Colombia I, supra note 27, Decl. of Judge ad hoc Mensah, para. 6 (stating that “it is at least arguable that this procedure is not available (certainly not as of right) to non-parties to UNCLOS”).

264 Treves, Remarks on Submissions to the Commission, supra note 65, at 364.

265 Zinchenko, Alexei A., Emerging Issues in the Work of the Commission on the Limits of the Continental Shelf , in Legal and Scientific Aspects of Continental Shelf Limits 235 (Nordquist, Myron H., Moore, John Norton & Heidar, Tomas H. eds., 2004)Google Scholar (stating that the deadline provision in Article 4 of Annex II “appears to exclude the possibility for States non-Parties”) Id. at 237.

266 Magnússon, Can the United States Establish the Outer Limits of its Extended Continental Shelf, supra note 64, at 7.

267 VCLT, supra note 216, Arts. 35, 36.

268 Some opinions appear to assume the contrary, namely that a non-party must have a “right” or “obligation” arising under treaty law in order to make a submission. See, e.g., ILA Second Report, supra note 241, at 20–21. In focusing on Articles 35 and 36, the Second Report does not address the question of whether a non-party is legally permitted to make a submission outside the confines of treaty law.

269 VCLT, supra note 216, Art. 34 (“A treaty does not create either obligations or rights for a third State without its consent.”).

270 McDorman, Role of the Commission, supra note 240, at 303–04.

271 Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission, 2d Sess., para. 12, Doc. No. CLCS/4 (1997).

272 Report of the Eighth Meeting of States Parties, UN Doc. No. SPLOS/31, paras. 51–52 (1998) (“[O]ne delegate stated that the Meeting of States Parties did not have the competence to give a legal opinion, and that it was preferable not to pursue the matter any further. He added that the Commission should request the Legal Counsel for an opinion only when the problem actually arises. Other delegations supported this point of view.”).

273 Id.

274 VCLT, supra note 216, Arts. 31, 32.

275 Chagos Marine Protected Area Arbitration (Mauritius v. U.K.), Award, 85, para. 203 (Perm. Ct. Arb. 2015).

276 See, e.g., LOS Convention, supra note 5, Arts. 17, 58(1), 87(1) (emphasis added).

277 Id. Art. 1(2)(1).

278 Id., Annex II, Art. 2.

279 This textual distinction is particularly evident in Article 2(5) of Annex II, under which a nominating “State Party” must defray the expenses of a CLCS member, but the “coastal State” must defray expenses incurred with respect to advice sought pursuant to Article 3(1)(b) of Annex II.

280 Treves, Remarks on Submissions to the Commission, supra note 65, at 364; Zinchenko, supra note 265, at 237; ILA Second Report, supra note 241, at 20–21.

281 VCLT, supra note 216, Art. 32.

282 Id.

283 Official Records of UNCLOS III are available at http://legal.un.org/diplomaticconferences/1973_los.

284 See Luke T. Lee, The Law of the Sea Convention and Third States, 77 AJIL 541, 547–50 (1983). According to Lee, “it may be argued [that] the reference to “all States” or “every State” reflects the assumption that all states would be parties to the Convention … .” Id. at 548. See also, Koh quote, supra, text at note 64.

285 This includes any possible “special meaning” be accorded to “coastal States.” VCLT, supra note 216, Art. 31(4).

286 See website of UN Office of the High Commissioner for Human Rights, describing “treaty-based bodies,” at http://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx.

287 LOS Convention, supra note 5, Annex VI, Arts. 20 (Access to the Tribunal), 21 (Jurisdiction).

288 Id. Arts. 187(c), 187(e), 190, Annex VI, Art. 20(2).

289 VCLT, supra note 216, Arts. 35, 36.

290 Although a non-party coastal state may subsequently establish its outer limits “on the basis of” such recommendations, it does not necessarily follow that those limits would be “final and binding” as a matter of treaty law, under the Convention. Recalling that treaties can only bind its states parties, the binding nature of a non-party's outer limits would be under customary international law rather than Article 76(8) of the Convention.

291 See supra, note 232 and corresponding text.

292 See, e.g., Reactions of states to the Joint Submission of Vietnam and Malaysia Concerning the South China Sea, at http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm.

293 See, e.g., GA Res. 70/235, at 5 (Dec. 23, 2015) (emphasis added).

294 At the time of writing, the Trump Administration had not yet stated a view on this matter.

295 Charting the Arctic: Security, Economic, and Resource Opportunities: Hearing Before the House Commission. On Foreign Affairs, 114th Cong. (2015) (Statement of Admiral Robert J. Papp, Jr.) (emphasis added).

296 See, e.g., U.S. Dep't of State, Fact Sheet: Why the United States Needs to Join the Law of the Sea Convention Now (2012).

297 Treves, Remarks on Submissions to the Commission, supra note 65, at 364. See also GA Res. 70/235, supra note 293 and corresponding text.