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A Reply to Mr. Finlay

Published online by Cambridge University Press:  28 March 2017

Louis Henkin
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American Journal of International Law , Volume 64 , Issue 1 , January 1970 , pp. 62 - 72
Copyright
Copyright © American Society of International Law 1970

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References

1 NPC Report at 8.

2 There is no support either in Par. 3: “The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.” That too refers to “the continental shelf” and no area is continental shelf until it is exploitable. Actually at one point the NPC Report states only that Par. 2 “preserves the exclusive rights of the coastal nations throughout whatever period of time is needed to permit the art of exploitation to achieve its ultimate depth capability within the limits of adjacency.” NPC Report at 56-57. Nothing in that section says anything of the kind. Even if one accepted that mineral exploitation by others could be excluded, it would not support the view that the United States can now claim those areas as present continental shelf, as the NPC proposes. Compare ibid, at 11.

3 Even by their principal witness, Dr. García-Amador, as quoted above by Mr. Finlay in his text at note 44. I find nothing to support and much to contradict the notion of “potential exploitability” in every other source cited by the NPC and Mr. Finlay, including McDougal and Burke.

4 Law for the Sea's Mineral Resources, Columbia University, Institute for the Study of Science in Human Affairs, 1968, at 69 (Mr. Finlay's references are to the Clearing House “publication” of the study which is less accessible and difficult to read).

5 Ibid, at 16-17, note 43.

6 Mr. Finlay and the NPC have found isolated references to the “slope.” But even if it were clear that the speakers were agreed as to what it meant, the references prove nothing. Perhaps the legal continental shelf can reach onto the continental slope, or even into the deep-ocean basin, where the shelf is very narrow and the areas beyond are still “adjacent,” near. No one said that all of the slope was automatically included regardless of distance from shore. No one mentioned the continental rise at all. No one suggested the simple formula, the entire submerged land mass.

7 NPC Report at 58.

8 1956 I.L.C. Yearbook (I) 131.

9 Ibid, at 136.

10 Compare the arguments for retaining the phrase, ibid, at 140.

11 The background of the resolution does not encourage me to believe that the broader language was a mistake; I have not heard it claimed that it was. For the history of Latin American efforts to extend the rights of coastal states, and United States resistance, see Oxman, The Preparation of Article 1 of the Convention on the Continental Shelf (Clearinghouse for Federal Scientific and Technical Information, PB-182-100) 74 et seq.

12 Ibid.

13 1956 I.L.C. Yearbook (1) at 135. Mr. Finlay says that in my monograph I “rejected” Dr. García-Amador's statement. I did not. What I wrote was: “Whether this view of adjacency survived the addition of the exploitability clause is open to question. I note that the proponent of this interpretation was the leading spokesman for adding the exploitability clause for the benefit of states that had no geological shelf, in effect, moving away from the geological basis of the definition.” Law for the Sea's Mineral Resources 24, note 72. In fact, others have pointed out to me, correctly, that the statement was made with regard to a definition that already included the exploitability clause. One might have to reject the figure 25 miles because it does not correspond to anything relevant; there is no basis for rejecting the rest of the statement that “adjacency” limits, regardless of how the submarine areas are designated.

14 1956 I.L.C. Rep. 41-42.

15 Ibid.

16 See NPC Report at 60. Professors McDougal and Burke, quoted by Mr. Finlay, also seem to contradict rather than support him. By Mr. Finlay's own statement they said that the definition was subject to the test of adjacency. I find nothing in their excellent volume that says that the entire submerged land mass is covered, no matter how far out. Indeed they say flatly: “Exploitation was not considered to be within the authority of a particular coastal state if the area involved could not be considered within reasonable proximity to that state.” (V. 686.) In a very recent paper Professor Burke, who has been generally sympathetic to a broad shelf, says only: “The Convention definition can reasonably be interpreted to permit expansion of the shelf limit to the edge of the continental land mass (and a few believe even further) as exploitation becomes feasible so long as the limit is still ‘adjacent’ to the coastal states.” (Emphasis mine.) He concludes: “Hence it seems to me to be impossible to accept the notion that the Convention presently allocates sovereign rights to the extent the NPC suggests.” Burke, Law, Science, and the Ocean, Occasional Paper, The Law of the Sea Institute 23-24 (1969).

17 [1969] I.C.J. Rep. 3, par. 41. Professor Burke also agrees that the I.C.J, opinion in the North Sea Cases indicates that in the Court's view “the present shelf limit … is a rather narrow one,” and that the Court “apparently does not accept that the legal shelf is always coextensive with the natural prolongation.” And “there is a very clear implication that in the Court's view the present limit on the shelf does not necessarily embrace the slope and rise. I.e., if the slope and rise are part of the ‘natural prolongation’ of the continental land mass, as they seem to be, it does not follow that they are part of the legal shelf.” Burke, note 16 above, at 29-31. Mr. Finlay points out that if the quoted statement were applied to Art. 1, some of the bed in the North Sea would not be “adjacent” to any coast and would not be within the Convention at all. That issue was not before the Court and it was not in the interest of any of the parties to raise it. Had it been considered, I believe the area would have been found to be continental shelf but not for any reasons that help the NPC. It seems that, despite the language, the Convention has been interpreted to cover all coastal waters up to the 200-meter isobath, regardless of “adjacency“; adjacency becomes critical, however, as one gets beyond the 200-meter isobath. The North Sea is generally less than 200 meters deep.

18 Law for the Sea's Mineral Resources, at 23-24 (footnotes omitted

19 Note 11 above, at 150.