INTRODUCTION

The continental shelf is a geological expression referring to the ledges that project from the
continental land mass into the seas and which are covered with only a relatively shallow layer
of water (some 150-200 metres) and which eventually fall away into the ocean depths (some
thousands of metres deep). These ledges or shelves take up some 7 to 8 % of the total area of
ocean and their extent varies considerably from place to place.

The vital fact about the continental shelves is that they are rich in oil and gas resources and
quite often are host to extensive fishing grounds. The width of the continental shelf varies
considerably – it is not uncommon for an area to have virtually no shelf at all, particularly
where the forward edge of an advancing oceanic plate dives beneath continental crust in an
offshore subduction zone such as off the coast of Chile or the west coast of Sumatra. The
largest shelf – the Siberian Shelf in the Arctic Ocean – stretches to 1,500 kilometers (930 mi)
in width. The South China Sea lies over another extensive area of continental shelf, the Sunda
Shelf, which joins Borneo, Sumatra, and Java to the Asian mainland. Other familiar bodies of
water that overlie continental shelves are the North Seaand the Persian Gulf. The average
width of continental shelves is about 80 km (50 mi). The depth of the shelf also varies, but is
generally limited to water shallower than 150 m (490 ft). The slope of the shelf is usually
quite low, on the order of 0.5°; vertical relief is also minimal, at less than 20 m (66 ft).
Though the continental shelf is treated as a physiographic province of the ocean, it is not part
of the deep ocean basin proper, but the flooded margins of the continent. Passive continental
margins such as most of the Atlantic coasts have wide and shallow shelves, made of thick
sedimentary wedges derived from long erosion of a neighboring continent. Active continental
margins have narrow, relatively steep shelves, due to frequent earthquakes that move
sediment to the deep sea.
The definition of the continental shelf and the criteria by which a coastal State may establish
the outer limits of its continental shelf are set out in article 76 of the Convention. In addition,
the Third United Nations Conference on the Law of the Sea (the "Conference") adopted on
29 August 1980 a "Statement of Understanding" which is contained in Annex II to the Final
Act of the Conference.

The term "continental shelf" is used by geologists generally to mean that part of the
continental margin which is between the shoreline and the shelf break or, where there is no
noticeable slope, between the shoreline and the point where the depth of the superjacent
water is approximately between 100 and 200 metres. However, this term is used in article 76
as a juridical term. According to the Convention, the continental shelf of a coastal State
comprises the submerged prolongation of the land territory of the coastal State - the seabed
and subsoil of the submarine areas that extend beyond its territorial sea to the outer edge of
the continental margin, or to a distance of 200 nautical miles where the outer edge of the
continental margin does not extend up to that distance. The continental margin consists of the
seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor
with its oceanic ridges or the subsoil thereof .

According to article 76, the coastal State may establish the outer limits of its juridical
continental shelf wherever the continental margin extends beyond 200 nautical miles by
establishing the foot of the continental slope, by meeting the requirements of article 76,
paragraphs 4 - 7, of the Convention.

The continental shelf is an undersea extension of a continent which can stretch for many
miles out to sea in some cases. Many nations have asserted mineral and land rights to their
associated continental shelves, since this region of the ocean is rich in natural resources such
as marine life. Minerals on the continental shelf are also significantly easier to extract than
minerals on the floor of the ocean, since the continental shelf is relatively shallow by
comparison. By convention, many countries defend their continental shelves as territorial
waters, since they are concerned about the exploitation of their natural resources.

There are actually several parts to the continental shelf. The first part is the shelf itself, which
starts below the shoreline of a continent. The shelf slopes gently as it stretches towards the
deeper part of the ocean, until it reaches a certain point and drops off sharply, causing the
waters above to rapidly become much deeper. This drop is called the continental break, and it
occurs uniformly at around 460 feet (140 meters) of depth. It has been theorized that the
continental break may mark the former sea level of the world's oceans.

After the continental break, the continental shelf takes a sharp downward turn, creating a
geological feature called the continental slope. This feature transitions into the continental
rise, a deposit of sediments which forms as a result of river and stream run off from the
neighbouring continent. Beyond the continental rise, one finds the ocean floor, along with a
host of fascinating plant and animal life which remains largely unexplored due to the
inaccessibility of the ocean floor.

In some instances, the continental shelf is very short, as is the case in subduction zones where
one tectonic plate is being sucked below another. A well known example of a subduction
zone can be found in the waters off the coast of Chile. In other cases, the continental shelf
stretches for many miles out to sea. The feature is often visible from overhead, if the viewer
looks for a marked change in the colour of the water which reflects a sudden change in depth.

A continental shelf is not necessarily flat. It may be marked with deep valleys and other
geological features which may continue out to the abyssal plain, the deepest part of the ocean.
The shelf is also covered in a thick layer of nutrient rich sediment which is deposited by
rivers and streams. These nutrients support varied and diverse marine life including
seaweeds, fish, and many microscopic organisms like din flagellates and other plankton.
 THE TERRITORIAL WATERS, CONTINENTAL SHELF, EXCLUSIVE

ECONOMIC ZONE AND OTHER MARITIME ZONES ACT, 1976

An Act to provide for certain matters relating to the territorial waters, continental shelf,

exclusive economic zone and other maritime zones of India.

Be it enacted by Parliament in the Twenty-seventh Year of the Republic of India as

follows:-

1. (1) This Act may be called the Territorial Waters, Continental Shelf, Exclusive

Economic Zone and Other Maritime Zones Act, 1976.

(2) Sections 5 and 7 shall come into force on such date or on such different dates as

the Central Government may, by notification in the official Gazette, appoint; and the

remaining provisions of this Act shall come into force at once.

2. In this Act, “Limit”, in relation to the territorial waters, the continental shelf, the

exclusive economic zone or any other maritime zone of India, means the limit of such

waters, shelf or zone with reference to the mainland of India as well as the individual or

composite group or groups of islands constituting part of the territory of India.

3. (1) The sovereignty of India extends and has always extended to the territorial

waters of India (hereinafter referred to as the territorial waters) and to the seabed and

subsoil underlying, and the air space over, such waters.

(2) The limit of the territorial waters is the line every point of which is at a distance

of twelve nautical miles from the nearest point of the appropriate baseline.

(3) Notwithstanding anything contained in sub-section (2), the Central Government

may, whenever it considers necessary so to do having regard to International Law and

State practice, alter, by notification in the Official Gazette, the limit of the territorial

waters.
(4) No notification shall be issued under sub-section (3) unless resolutions approving

the issue of such notification are passed by both Houses of Parliament.

4. (1) Without prejudice to the provisions of any other law for the time being in

force, all foreign ships (other than warships including submarines and other underwater

vehicles) shall enjoy the right of innocent passage through the territorial waters.

Explanation- For the purposes of this section, passage is innocent so long as it is

not prejudicial to the peace, good order or security of India. (2) Foreign warships including
submarines and other underwater vehicles may enter

or pass through the territorial waters after giving prior notice to the Central Government:

Provided that submarines and other underwater vehicles shall navigate on the surface and

show their flag while passing through such waters.

(3) The Central Government may, if satisfied that it is necessary so to do in the

interests of the peace, good order or security of India or any part thereof, suspend, by

notification in the Official Gazette, whether absolutely or subject to such exceptions and

qualifications as may be specified in the notification, the entry of all or any class of

foreign ships into such area of the territorial waters as may be specified in the

notification.

5. (1) The contiguous zone of India (hereinafter referred to as the contiguous zone)

is and area beyond and adjacent to the territorial waters and the limit of the contiguous

zone is the line every point of which is at a distance of twenty-four nautical miles from

the nearest point of the baseline referred to in sub-section (2) of section 3.

(2) Notwithstanding anything contained in sub-section (1), the Central Government

may, whenever it considers necessary so to do having regard to International Law and

State practice, alter, by notification in the Official Gazette, the limit of the contiguous

zone.
(3) No notification shall be issued under sub-section (2) unless resolutions approving

the issue of such notification are passed by both Houses of Parliament.

(4) The Central Government may exercise such powers and take such measures in or

in relation to the contiguous zone as it may consider necessary with respect to,-

(a) the security of India, and

(b) immigrations sanitation, customs and other fiscal matters.

(5) The Central Government may, by notification in the Official Gazette,-

(a) extend with such restrictions and modifications as it thinks fit, any

enactment, relating to any matter referred to in clause (a) or clause (b) of subsection (4), for
the time being in force in India or any part thereof, to the

contiguous zone, and

(b) make such provisions as it may consider necessary in such notification for

facilitating the enforcement of such enactment, and any enactment so extended

shall have effect as if the contiguous zone is a part of the territory of India.

6. (1) The continental shelf of India (hereinafter referred to as the continental shelf)

comprises the seabed and subsoil of the submarine areas that extend beyond the limit of

its territorial waters throughout the natural prolongation of its land territory to the outer

edge of the continental margin or to a distance of two hundred nautical miles from the
baseline referred to in sub-section (2) of section 3 where the outer edge of the continental

margin does not extend up to that distance.

(2) India has, and always had, full and exclusive sovereign rights in respect of its

continental shelf.

(3) Without prejudice to the generality of the provisions of sub-section (2), the Union

has in the continental shelf,-

(a) Sovereign rights for the purposes of exploration, exploitation, conservation and
management of all resources;

(b) exclusive rights and jurisdiction for the construction, maintenance or operation of

artificial islands, off-shore terminals, installations and other structures and devices

necessary for the exploration and exploitation of the resources of the continental shelf or

for the convenience of shipping or for any other purpose;

(c) exclusive jurisdiction to authorize, regulate and control scientific research; and

(d) exclusive jurisdiction to preserve and protect the marine environment and to

prevent and control marine pollution.

(4) No person (including a foreign Government) shall, expect under, and in

accordance with, the terms of a licence or a letter of authority granted by the Central

Government, explore the continental shelf or exploit its resources or carry out any search

or excavation or conduct any research within the continental shelf o drill therein or

construct, maintain or operate any artificial island, off-shore terminal, installation or other

structure or device therein for any purpose whatsoever.

(5) The Central Government may, by notification in the Official Gazette,-

(a) declare any area of the continental shelf and its superjacent waters to be a

designated area; and

(b) make such provisions as it may deem necessary with respect to,-

(i) the exploration, exploitation and protection of the resources of the

continental shelf within such designated area; or

(ii) the safety and protection of artificial islands, off-shore terminals,

installations and other structures and devices in such designated area; or

(iii) the protection of marine environment of such designated area; or

(iv) customs and other fiscal matters in relation to such designated

area.
Explanation- A notification issued under this sub-section may provide for the

regulation of entry into and passage through the designated area of foreign ships by the

establishment of fairways, sealanes, traffic separation schemes or any other mode of

ensuring freedom of navigation which is not prejudicial to the interests of India.

(6) The Central Government may, by notification in the Official Gazette,-

(a) extend with restrictions and modifications as it thinks fit, any enactment

for the time being in force in India or any part thereof to the continental shelf or

any part [including any designated area under sub-section (5)] thereof, and

(b) make such provisions as it may consider necessary for facilitating the

enforcement of such enactment, and any enactment so extended shall have effect

as if the continental shelf or the part [including, as the case may be, any

designated area under sub-section (5) ] thereof to which it has been extended is a

part of the territory of India.

(7) Without prejudice to the provisions of sub-section (2) and subject to any measures

that may be necessary for protecting the interests of India, the Central Government may

not impede the laying or maintenance of submarine cables or pipelines on the continental

shelf by foreign Stats:

Provided that the consent of the Central Government shall be necessary for the

delineation of the course for the laying of such cables or pipelines.

7. (1) The exclusive economic zone of India (hereinafter referred to Exclusive as the

exclusive economic zone) is an area beyond and adjacent to the territorial waters, and the

limit of such zone is two hundred nautical miles from the baseline referred to in subsection
(2) of section3.

(2) Notwithstanding anything contained in sub-section (1), the Central Government

may, whenever it considers necessary so to do having regard to International Law and

State practice, alter, by notification in the Official Gazette, the limit of the exclusive
economic zone.

(3) No notification shall be issued under sub-section (2) unless resolutions approving

the issue of such notification are passed by both Houses of Parliament .

(4) In the exclusive economic zone, the Union has,-

(a) sovereign rights for the purpose of exploration, exploitation, conservation

and management of the natural resources, both living and non-living as well as for

producing energy from tides, winds and currents;

(b) exclusive rights and jurisdiction for the construction, maintenance or

operation of artificial islands, off-shore terminals, installations and other

structures and devices necessary for the exploration and exploitation of the

resources of the zone or for the convenience of shipping or for any other purpose.

(c) Exclusive jurisdiction to authorize, regulate and control scientific

research;

(d) Exclusive jurisdiction to preserve and protect the marine environment and

to prevent and control marine pollution; and

(e) Such other rights as are recognized by International Law. (5) No person (including a
foreign Government ) shall, except under, and in

accordance with, the terms of any agreement with the Central Government or of a licence

or a letter of authority granted by the Central Government, explore or exploit any

resources of the exclusive economic zone or carry out any search or excavation or

conduct any research within the exclusive economic zone or drill therein or construct,

maintain or operate any artificial island, off-shore terminal, installation or other structure

or device therein for any purpose whatsoever: Provided that nothing in this sub-section

shall apply in relation to fishing by a citizen of India.

(6) The Central Government may, by notification in the Official Gazette,-

(a) declare any area of the exclusive economic zone to be a designated area;

or
(b) make such provisions as it may deem necessary with respect to,-

(i) the exploration, exploitation and protection of the resources of

such designated area; or

(ii) other activities for the economic exploitation and exploration of

such designated area such as the production of energy from tides, winds

and currents; or

(iii) the safety and protection of artificial islands, off-shore terminals,

installations and other structures and devices in such designated area; or

(iv) the protection of marine environment of such designated area; or

(v) customs and other fiscal matters in relation to such designated

area.

Explanation – A notification issued under this sub-section may provide for the

regulation of entry into and passage through the designated area of foreign ships by the

establishment of fairways, sealanes, traffic separation schemes or any other mode of

ensuring freedom of navigation which is not prejudicial to the interest of India.

(7) The Central Government may , by notification in the official Gazette,-

(a) extend, with such restrictions and modifications as it thinks fit, any

enactment for the time being in force in India or any part thereof to the exclusive

economic zone or any part thereof; and

(b) make such provisions as it may consider necessary for facilitation the

enforcement of such enactment, and any enactment so extended shall have

effect as if the exclusive economic zone or the part thereof to which it has

been extended is a part of the territory of India.

(8) The provisions of sub-section (7) of section 6 shall apply in relation to the laying

or maintenance of submarine cables or pipelines on the seabed of the exclusive economic

zone as they apply in relation to the laying or maintenance of submarine cables or

pipelines on the seabed of the continental shelf. (9) In the exclusive economic zone and the
air space over the zone, ships and aircraft

of all States shall, subject to the exercise by India of its rights within the zone, enjoy

freedom of navigation and over flight.

8. (1) The Central Government may, by notification in the Official Gazette, specify

the limits of such waters adjacent to its land territory as are the historic waters of India.

(2) The sovereignty of India extends, and has always extended, to the historic waters

of India and to the seabed and subsoil underlying, and the air space over, such waters.

9. (1) The maritime boundaries between India and any State whose coast is opposite

or adjacent to that of India in regard to their respective territorial waters, contiguous

zones, continental shelves, exclusive economic zones and other maritime zones shall be

as determined by agreement (whether entered into before or after the commencement of

this section) between India and such State and pending such agreement between India

and any such State, and unless any other provisional arrangements are agreed to between

them, the maritime boundaries between India and such State shall not extend beyond the

line every point of which is equidistant from the nearest point from which the breadth of

the territorial waters of India and of such State are measured.

(2) Every agreement referred to in sub-section (1) shall, as soon as may be after it is

entered into, be published in the Official Gazette.

(3) The provisions of sub-section (1) shall have effect notwithstanding anything

contained in any other provision of this Act.

10. The Central Government may cause the baseline referred to in sub-section (2) of

section 3, the limits of the territorial waters, the contiguous zone, the continental shelf,

the exclusive economic zone and the historic waters of India and the maritime boundaries
as settled by agreements referred to in section 9 to be published in charts.

11. Whoever contravenes any provision of this Act or of any notification thereunder

shall (without prejudice to any other action which may be taken against such person

under any other provision of this or of any other enactment) be punishable with

imprisonment which may extend to three years, or with fine, or with both.

12. (1) Where an offence under this Act or the rules made thereunder has been

committed by a company, every person who at the time the offence was committed was

in charge of and was responsible to the company for the conduct of the business of the

company, as well as the company shall be deemed to be guilty of the offence and shall be

liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person

liable to any punishment provided in this Act if he proves that the offence was committed

without his knowledge or that he exercised all due diligence to prevent the commission of

such offence. (2) Notwithstanding anything contained in sub- section (1) where an offence
under

this Act or the rules made there under has been committed with the consent or the

connivance of, or is attributable to any neglect on the part of, any director, manager,

secretary or other officer shall also be deemed to be guilty of that offence and shall be

liable to be proceeded against and punished accordingly.

Explanation – For the purpose of this section-

(a) “Company “ means any body corporate and includes a firm or other

association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.

13. Any person committing an offence under this Act or any rules made there under

or under any of the enactments extended under this Act or under the rules made there

under may be tried for the offence in any place in which he may be found or in such other

place as the Central Government may, by general or special order, published in the

Official Gazette, direct in this behalf.

14. No prosecution shall be instituted against any person in respect of any offence

under this Act or the rules made there under without the previous sanction of the Central

Government or such officer or authority as may be authorized by that Government by

order in writing in this behalf.

15. (1) The Central Government may, by notification in the Official Gazette, make

rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such

rules may provide for all or any of the following matters, namely:-

(a) regulation of the conduct of any person in the territorial waters, the

contiguous zone, the continental shelf, the exclusive economic zone or any other

maritime zone of India;

(b) regulation of the exploration and exploitation, conservation and

management of the resources of the continental shelf;

(c) regulation of the exploration, exploitation, conservation and management

of the resources of the exclusive economic zone;

(d) regulation of the construction, maintenance and operation of artificial

islands, off-shore terminals, installations and other structures and devices referred

to in sections 6 and 7;

(e) preservation and protection of the marine environment and prevention and

control of marine pollution for the purpose of this Act;

(f) authorization, regulation and control of the conduct of scientific research

for the purpose of this Act; (g) fees in relation to licences and letters of authority referred to
in subsection (4) of section 6 and sub-section (5) of section 7 or for any other purpose;

or

(h) any matter incidental to any of the matters specified in clauses (a) to (g).

(3) In making any rule under this section, the Central Government may provide that a

contravention thereof shall be punishable with imprisonment, which may extend to three

years, or with fine, which may extend to any amount, or with both.

(4) Every rule made under this Act and every notification issued under sub-section

(5) of section 6 or sub- section (6) of section 7 shall be laid, as soon as may be after it is

made or issued, before each House of Parliament while it is in session for a total period of

thirty days which may be comprised in one session or in two or more successive sessions

and if, before the expiry of the session immediately following the session or the

successive sessions aforesaid both Houses agree in making any modification in the rule

or the notification or both Houses agree that the rule or notification should not be issued,

the rule or notification shall, thereafter, have effect only in such modified form or be of

no effect, as the case may be; so however, that any such modification or annulment shall

be without prejudice to the validity of anything previously done under that rule or

notification.

16. (1) If any difficulty arises in giving effect to the provisions of this Act or of any of

the enactments extended under this Act, the Central Government may, by order published

in the Official Gazette, make such provisions not inconsistent with the provisions of this

Act or, as the case may be, of such enactment, as may appear to it to be necessary or

expedient for removing the difficulty:

Provided that no order shall be made under this section-

(a) in the case of any difficulty arising in giving effect to any provision of this

Act, after the expiry of three years from the commencement of such provision;

(b) in the case of any difficulty arising in giving effect to the provisions of any

enactment extended under this Act, after the expiry of three years from the

extension of such enactment.

(2) Every order made under this section shall be laid, as soon as may be after it is

made, before each House of Parliament.

 The Outer Continental Shelf

The U.S. Outer Continental Shelf consists of the submerged lands, subsoil, and seabed in a
specified zone up to 200 nautical miles or more offshore from U.S. coasts.

The continental shelf is the gently sloping undersea plain between a continent and the deep
ocean. The continental shelf is an extension of the continent's landmass under the ocean. The
waters of the continental shelf are relatively shallow (rarely more than 150 to 200 meters
deep) compared to the open ocean (thousands of meters deep). The continental shelf extends
outward to the continental slope where the deep ocean truly begins. Figure 1 is a schematic
diagram of the continental shelf. The width of the continental shelf around the U.S. varies
from approximately 20 to 400 km. The continental shelf regions are important economically,
primarily because their waters are the source of much seafood, and because of the energy
these regions provide, both in the form of fossil fuels, such as oil and gas, and renewable
energy resources.
 NORTH SEA CONTINENTAL SHELF CASES
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases.

The dispute, which was submitted to the Court on 20 February 1967, related to the
delimitation of the continental shelf between the Federal Republic of Germany and Denmark
on the one hand, and between the Federal Republic of Germany and the Netherlands on the
other. The Parties asked the Court to state the principles and rules of international law
applicable, and undertook thereafter to carry out the delimitations on that basis.

The Court rejected the contention of Denmark and the Netherlands to the effect that the
delimitations in question had to be carried out in accordance with the principle of
equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf,
holding:

- that the Federal Republic, which had not ratified the Convention, was not legally bound by
the provisions of Article 6;

- that the equidistance principle was not a necessary consequence of the general concept of
continental shelf rights, and was not a rule of customary international law.

The Court also rejected the contentions of the Federal Republic in so far as these sought
acceptance of the principle of an apportionment of the continental shelf into just and
equitable shares. It held that each Party had an original right to those areas of the continental
shelf which constituted the natural prolongation of its land territory into and under the sea. It
was not a question of apportioning or sharing out those areas, but of delimiting them.

The Court found that the boundary lines in question were to be drawn by agreement between
the Parties and in accordance with equitable principles, and it indicated certain factors to be
taken into consideration for that purpose. It was now for the Parties to negotiate on the basis
of such principles, as they have agreed to do.

The proceedings, relating to the delimitation as between the Parties of the areas of the North
Sea continental shelf appertaining to each of them, were instituted on 20 February 1967 by
the communication to the Registry of the Court of two Special Agreements, between
Denmark and the Federal Republic and the Federal Republic and the Netherlands
respectively. By an Order of 26 April 1968, the Court joined the proceedings in the two
cases.

The Court decided the two cases in a single Judgment, which it adopted by eleven votes to
six. Amongst the Members of the Court concurring in the Judgment, Judge Sir Muhammad
Zafrulla Khan appended a declaration; and President Bustamante y Rivero and Judges Jessup,
Padilla Nervo and Ammoun appended separate opinions. In the case of the non-concurring
Judges, a declaration of his dissent was appended by Judge Bengzon; and Vice-President
Koretsky, together with Judges Tanaka, Morelli and Lachs, and Judge ad hoc Sorensen,
appended dissenting opinions.
In its Judgment, the Court examined in the context of the delimitations concerned the
problems relating to the legal régime of the continental shelf raised by the contentions of the
Parties.

The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment)

The two Special Agreements had asked the Court to declare the principles and rules of
international law applicable to the delimitation as between the Parties of the areas of the
North Sea continental shelf appertaining to each of them beyond the partial boundaries in the
immediate vicinity of the coast already determined between the Federal Republic and the
Netherlands by an agreement of 1 December 1964 and between the Federal Republic and
Denmark by an agreement of 9 June 1965.The Court was not asked actually to delimit the
further boundaries involved, the Parties undertaking in their respective Special Agreements to
effect such delimitation by agreement in pursuance of the Court's decision.

The waters of the North Sea were shallow, the whole seabed, except for the Norwegian
Trough, consisting of continental shelf at a depth of less than 200 metres. Most of it had
already been delimited between the coastal States concerned. The Federal Republic and
Denmark and the Netherlands, respectively, had, however, been unable to agree on the
prolongation of the partial boundaries referred to above, mainly because Denmark and the
Netherlands had wished this prolongation to be effected on the basis of the equidistance
principle, whereas the Federal Republic had considered that it would unduly curtail what the
Federal Republic believed should be its proper share of continental shelf area, on the basis of
proportionality to the length of its North Sea coastline. Neither of the boundaries in question
would by itself produce this effect, but only both of them together - an element regarded by
Denmark and the Netherlands as irrelevant to what they viewed as being two separate
delimitations, to be carried out without reference to the other.

A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of the
Parties concerned all those portions of the continental shelf that were nearer to a point on its
own coast than they were to any point on the coast of the other Party. In the case of a concave
or recessing coast such as that of the Federal Republic on the North Sea, the effect of the
equidistance method was to pull the line of the boundary inwards, in the direction of the
concavity. Consequently, where two equidistance lines were drawn, they would, if the
curvature were pronounced, inevitably meet at a relatively short distance from the coast, thus
"cutting off" the coastal State from the area of the continental shelf outside. In contrast, the
effect of convex or outwardly curving coasts, such as were, to a moderate extent, those of
Denmark and the Netherlands, was to cause the equidistance lines to leave the coasts on
divergent courses, thus having a widening tendency on the area of continental shelf off that
coast.

It had been contended on behalf of Denmark and the Netherlands that the whole matter was
governed by a mandatory rule of law which, reflecting the language of Article 6 of the
Geneva Convention on the Continental Shelf of 29 April 1958, was designated by them as the
"equidistance-special circumstances" rule. That rule was to the effect that in the absence of
agreement by the parties to employ another method, all continental shelf boundaries had to be
drawn by means of an equidistance line unless "special circumstances" were recognized to
exist. According to Denmark and the Netherlands, the configuration of the German North Sea
coast did not of itself constitute, for either of the two boundary lines concerned, a special
circumstance.

The Federal Republic, for its part, had contended that the correct rule, at any rate in such
circumstances as those of the North Sea, was one according to which each of the States
concerned should have a "just and equitable share" of the available continental shelf, in
proportion to the length of its sea-frontage. It had also contended that in a sea shaped as is the
North Sea, each of the States concerned was entitled to a continental shelf area extending up
to the central point of that sea, or at least extending to its median line. Alternatively, the
Federal Republic had claimed that if the equidistance method were held to bc applicable, the
configuration of the German North Sea coast constituted a special circumstance such as to
justify a departure from that method of delimitation in this particular case.

The Apportionment Theory Rejected (paras. 18-20 of the Judgment)

The Court felt unable to accept, in the particular form it had taken, the first contention put
forward on behalf of the Federal Republic. Its task was to delimit, not to apportion the areas
concerned. The process of delimitation involved establishing the boundaries of an area
already, in principle, appertaining to the coastal State and not the determination de novo of
such an area. The doctrine of the just and equitable share was wholly at variance with the
most fundamental of all the rules of law relating to the continental shelf, namely, that the
rights of the coastal State in respect of the area of continental shelf constituting a natural
prolongation of its land territory under the sea existed ipso facto and ab initio, by virtue of its
sovereignty over the land. That right was inherent. In order to exercise it, no special legal acts
had to be performed. It followed that the notion of apportioning an as yet undelimited area
considered as a whole (which underlay the doctrine of the just and equitable share) was
inconsistent with the basic concept of continental shelf entitlement.

Non-Applicability of Article 6 of the 1958 Continental Shelf Convention

The Court then turned to the question whether in delimiting those areas the Federal Republic
was under a legal obligation to accept the application of the equidistance principle. While it
was probably true that no other method of delimitation had the same combination of practical
convenience and certainty of application, those factors did not suffice of themselves to
convert what was a method into a rule of law. Such a method would have to draw its legal
force from other factors than the existence of those advantages.

The first question to be considered was whether the 1958 Geneva Convention on the
Continental Shelf was binding for all the Parties in the case. Under the formal provisions of
the Convention, it was in force for any individual State that had signed it within the time-
limit provided, only if that State had also subsequently ratified it. Denmark and the
Netherlands had both signed and ratified the Convention and were parties to it, but the
Federal Republic, although one of the signatories of the Convention, had never ratified it, and
was consequently not a party. It was admitted on behalf of Denmark and the Netherlands that
in the circumstances the Convention could not, as such, be binding on the Federal Republic.
But it was contended that the régime of Article 6 of the Convention had become binding on
the Federal Republic, because, by conduct, by public statements and proclamations, and in
other ways, the Republic had assumed the obligations of the Convention.

It was clear that only a very definite, very consistent course of conduct on the part of a State
in the situation of the Federal Republic could justify upholding those contentions. When a
number of States drew up a convention specifically providing for a particular method by
which the intention to become bound by the régime of the convention was to be manifested, it
was not lightly to be presumed that a State which had not carried out those formalities had
nevertheless somehow become bound in another way. Furthermore, had the Federal Republic
ratified the Geneva Convention, it could have entered a reservation to Article 6, by reason of
the faculty to do so conferred by Article 12 of the Convention.

Only the existence of a situation of estoppel could lend substance to the contention of
Denmark and the Netherlands - i.e., if the Federal Republic were now precluded from
denying the applicability of the conventional régime, by reason of past conduct, declarations,
etc., which not only clearly and consistently evinced acceptance of that régime, but also had
caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change
position or suffer some prejudice. Of this there was no evidence. Accordingly, Article 6 of
the Geneva Convention was not, as such, applicable to the delimitations involved in the
present proceedings.

The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental Shelf
(paras. 37-59 of the Judgment)

It had been maintained by Denmark and the Netherlands that the Federal Republic was in any
event, and quite apart from the Geneva Convention, bound to accept delimitation on an
equidistance basis, since the use of that method was a rule of general or customary
international law, automatically binding on the Federal Republic.

One argument advanced by them in support of this contention, which might be termed the a
priori argument, started from the position that the rights of the coastal State to its continental
shelf areas were based on its sovereignty over the land domain, of which the shelf area was
the natural prolongation under the sea. From this notion of appurtenance was derived the
view, which the Court accepted, that the coastal State's rights existed ipso facto and ab initio.
Denmark and the Netherlands claimed that the test of appurtenance must be "proximity": all
those parts of the shelf being considered as appurtenant to a particular coastal State which
were closer to it than they were to any point on the coast of another State. Hence, delimitation
had to be effected by a method which would leave to each one of the States concerned all
those areas that were nearest to its own coast. As only an equidistance line would do this,
only such a line could be valid, it was contended.

This view had much force; the greater part of a State's continental shelf areas would normally
in fact be nearer to its coasts than to any other. But the real issue was whether it followed that
every part of the area concerned must be placed in that way. The Court did not consider this
to follow from the notion of proximity, which was a somewhat fluid one. More fundamental
was the concept of the continental shelf as being the natural prolongation of the land domain.
Even if proximity might afford one of the tests to be applied, and an important one in the
right conditions, it might not necessarily be the only, nor in all circumstances the most
appropriate, one. Submarine areas did not appertain to the coastal State merely because they
were near it, nor did their appurtenance depend on any certainty of delimitation as to their
boundaries. What conferred the ipso jure title was the fact that the submarine areas concerned
might be deemed to be actually part of its territory in the sense that they were a prolongation
of its land territory under the sea. Equidistance clearly could not be identified with the notion
of natural prolongation, since the use of the equidistance method would frequently cause
areas which were the natural prolongation of the territory of one State to be attributed to
another. Hence, the notion of equidistance was not an inescapable a priori accompaniment of
basic continental shelf doctrine.

A review of the genesis of the equidistance method of delimitation confirmed the foregoing
conclusion. The "Truman Proclamation" issued by the Government of the United States on 28
September 1945 could be regarded as a starting point of the positive law on the subject, and
the chief doctrine it enunciated, that the coastal State had an original, natural and exclusive
right to the continental shelf off its shores, had come to prevail over all others and was now
reflected in the1958 Geneva Convention. With regard to the delimitation of boundaries
between the continental shelves of adjacent States, the Truman Proclamation had stated that
such boundaries "shall be determined by the United States and the State concerned in
accordance with equitable principles". These two concepts, of delimitation by mutual
agreement and delimitation in accordance with equitable principles, had underlain all the
subsequent history of the subject. It had been largely on the recommendation of a committee
of experts that the principle of equidistance for the delimitation of continental shelf
boundaries had been accepted by the United Nations International Law Commission in the
text it had laid before the Geneva Conference of 1958 on the Law of the Sea which had
adopted the Continental Shelf Convention. It could legitimately be assumed that the experts
had been actuated by considerations not of legal theory but of practical convenience and
cartography. Moreover, the article adopted by the Commission had given priority to
delimitation by agreement and had contained an exception in favour of "special
circumstances".

The Court consequently considered that Denmark and the Netherlands inverted the true order
of things and that, far from an equidistance rule having been generated by an antecedent
principle of proximity inherent in the whole concept of continental shelf appurtenance, the
latter was rather a rationalization of the former

The Equidistance Principle Not a Rule of Customary International Law (paras. 60-82 of the
Judgment)

The question remained whether through positive law processes the equidistance principle
must now be regarded as a rule of customary international law.
Rejecting the contentions of Denmark and the Netherlands, the Court considered that the
principle of equidistance, as it figured in Article 6 of the Geneva Convention, had not been
proposed by the International Law Commission as an emerging rule of customary
international law. This Article could not be said to have reflected or crystallized such a rule.
This was confirmed by the fact that any State might make reservations in respect of Article 6,
unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the Convention. While certain
other provisions of the Convention, although relating to matters that lay within the field of
received customary law, were also not excluded from the faculty of reservation, they all
related to rules of general maritime law very considerably antedating the Convention which
were only incidental to continental shelf rights as such, and had been mentioned in the
Convention simply to ensure that they were not prejudiced by the exercise of continental
shelf rights. Article 6, however, related directly to continental shelf rights as such, and since
it was not excluded from the faculty of reservation, it was a legitimate inference that it was
not considered to reflect emergent customary law.

It had been argued on behalf of Denmark and the Netherlands that even if at the date of the
Geneva Convention no rule of customary international law existed in favour of the
equidistance principle, such a rule had nevertheless come into being since the Convention,
partly because of its own impact, and partly on the basis of subsequent State practice. In order
for this process to occur it was necessary that Article 6 of the Convention should, at all events
potentially, be of a norm-creating character. Article 6 was so framed, however, as to put the
obligation to make use of the equidistance method after a primary obligation to effect
delimitation by agreement. Furthermore, the part played by the notion of special
circumstances in relation to the principle of equidistance, the controversies as to the exact
meaning and scope of that notion, and the faculty of making reservations to Article 6 must all
raise doubts as to the potentially norm-creating character of that Article.

Furthermore, while a very widespread and representative participation in a convention might

show that a conventional rule had become a general rule of international law, in the present
case the number of ratifications and accessions so far was hardly sufficient. As regards the
time element, although the passage of only a short period of time was not necessarily a bar to
the formation of a new rule of customary international law on the basis of what was originally
a purely conventional rule, it was indispensable that State practice during that period,
including that of States whose interests were specially affected, should have been both
extensive and virtually uniform in the sense of the provision invoked and should have
occurred in such a way as to show a general recognition that a rule of law was involved.
Some 15 cases had been cited in which the States concerned had agreed to draw or had drawn
the boundaries concerned according to the principle of equidistance, but there was no
evidence that they had so acted because they had felt legally compelled to draw them in that
way by reason of a rule of customary law. The cases cited were inconclusive and insufficient
evidence of a settled practice.

The Court consequently concluded that the Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of customary international law enjoining the use of
the equidistance principle, its subsequent effect had not been constitutive of such a rule, and
State practice up to date had equally been insufficient for the purpose.

The Principles and Rules of Law Applicable

The legal situation was that the Parties were under no obligation to apply the equidistance
principle either under the 1958 Convention or as a rule of general or customary international
law. It consequently became unnecessary for the Court to consider whether or not the
configuration of the German North Sea coast constituted a "special circumstance". It
remained for the Court, however, to indicate to the Parties the principles and rules of law in
the light of which delimitation was to be effected.

The basic principles in the matter of delimitation, deriving from the Truman Proclamation,
were that it must be the object of agreement between the States concerned and that such
agreement must be arrived at in accordance with equitable principles. The Parties were under
an obligation to enter into negotiations with a view to arriving at an agreement and not
merely to go through a formal process of negotiation as a sort of prior condition for the
automatic application of a certain method of delimitation in the absence of agreement; they
were so to conduct themselves that the negotiations were meaningful, which would not be the
case when one of them insisted upon its own position without contemplating any
modification of it. This obligation was merely a special application of a principle underlying
all international relations, which was moreover recognized in Article 33 of the Charter of the
United Nations as one of the methods for the peaceful settlement of international disputes.

The Parties were under an obligation to act in such a way that in the particular case, and
taking all the circumstances into account, equitable principles were applied. There was no
question of the Court's decision being ex aequo et bono. It was precisely a rule of law that
called for the application of equitable principles, and in such cases as the present ones the
equidistance method could unquestionably lead to inequity. Other methods existed and might
be employed, alone or in combination, according to the areas involved. Although the Parties
intended themselves to apply the principles and rules laid down by the Court some indication
was called for of the possible ways in which they might apply them.

For all the foregoing reasons, the Court found in each case that the use of the equidistance
method of delimitation was not obligatory as between the Parties; that no other single method
of delimitation was in all circumstances obligatory; that delimitation was to be effected by
agreement in accordance with equitable principles and taking account of all relevant
circumstances, in such a way as to leave as much as possible to each Party all those parts of
the continental shelf that constituted a natural prolongation of its land territory, without
encroachment on the natural prolongation of the land territory of the other; and that, if such
delimitation produced overlapping areas, they were to be divided between the Parties in
agreed proportions, or, failing agreement, equally, unless they decided on a régime of joint
jurisdiction, user, or exploitation.

In the course of negotiations, the factors to be taken into account were to include: the general
configuration of the coasts of the Parties, as well as the presence of any special or unusual
features; so far as known or readily ascertainable, the physical and geological structure and
natural resources of the continental shelf areas involved, the element of a reasonable degree
of proportionality between the extent of the continental shelf areas appertaining to each State
and the length of its coast measured in the general direction of the coastline, taking into
account the effects, actual or prospective, of any other continental shelf delimitations in the
same region.
 Libya-Malta continental shelf case

The subsequent Libya-Malta case, decided by the International Court of Justice in 1986, was
significant in that it established a methodology for the ICJ to approach maritime boundary
cases. In the 1983 Special Agreement submitted by the parties, the court was asked to decide
on the “principles and rules of international law” applicable to the delimitation of the area –
i.e. not to decide on the position of the boundary itself.

In the case, the court commenced by drawing an equidistance line between the coastlines of
the two states, and then proceeded to take into account “relevant circumstances.” In this case,
the most significant was the disparity between the respective lengths of the coastlines of
Libya (192 miles) and Malta (24 miles).

Having ascertained that this disparity should be taken into account, the court was then
obliged to suggest the extent to which the equidistance line should be adjusted – and
concluded that “a shift of about two-thirds of the distance between the Malta-Libya
Equidistance line and a line located 24' further north gives an equitable result.” In sum, the
court decided that the relevant circumstances and factors to be taken into account included:

(1) "The general configuration of the coasts of the parties, their oppositeness, and their
relationship to each other within the general geographical context."

(2) The disparity in the lengths of the relevant coasts of the Parties and the distance between
them

(3) The need to avoid in the delimitation any excessive disproportion between the extent of
the continental shelf areas pertaining to coastal State and the length of the relevant part of its
coast, measured in the general direction of the coastlines.

Libya had argued that there existed, in the area of the delimitation, two distinct continental
shelves divided by what it described as a “rift zone,” and that these shelves should form the
basis of the delimitation. However, the court took the view that “since the development of the
law enables a State to claim continental shelf up to as far as 200 nm from its coast, whatever
the geological characteristics of the corresponding sea-bed and subsoil, there is no reason to
ascribe any role to geological or geophysical features within that distance.”

“Equitable principles,” in this and subsequent cases, proved to be of greater importance than
geography.
 ACKNOWLEDGEMENT

For the successful completion of this project , I would like to thank my Law
& Poverty teacher Dr Ghulam Yazdani. He made the concepts of the topic
so clear in my mind that it became very easy for me to work on the topic. It
would not have been possible to complete the project work without his
guidance.

I would also like to thank my elder sisters and my elder brother who were a
constant support throughout the project making.

Last, but not the least I would like to thank my Parents who stood by me
through every thick and thin.

SHAHRUKH AHMAD
 BIBLIOGRAPHY

International Law 4th edition by Malcom.N.Shaw

Introduction to International Law 9th edition by G.N.starke

International Law 3rd edition by Rebecca.M.M.Wallace

PUBLIC INTERNATIONAL LAW

CONTINENTAL SHELF

BY
SHAHRUKH AHMAD

4th semester 2nd year

J.M.I