This post is contributed by Deeksha Prakash, Symbiosis Law School, Hyderabad.
The distinctive feature of the planet earth is its abundant water. From the very ancient period, the oceans have provided the stage for wars, but at the same time, it also provided a regular source of human livelihood, as well as a medium of trade, transport, and commerce for mankind. It also played a crucial role in moderating the global climate, a laboratory for understanding the Earth’s physical and biological history, and a receptacle for waste disposal. Man, who essentially fought his wars on the land extended these wars to the sea and the air. This extension of wars to hydrospace and the air and outer space turned out to be a total disaster. Therefore, man is now striving hard and making true efforts towards the reduction if not total elimination of such wars.
A brief development in the concept of the sea- The early Roman jurists looked upon the sea, as upon the air, as common to all mankind. However, as sea commerce developed in the later middle ages, the leading maritime nations made claims of sovereignty over vast ocean areas and during this time many seas became more or less effectively appropriated.
- In the sixteenth century, extensive claims were put forward by Spain and Portugal, who, by virtue of Papal Bulls in 1943 and the Treaty of Tordesillas in the following year, sought the division of the sea between them. Spain claimed the exclusive right of navigation in the Western portion of the Atlantic, in the Gulf of Mexico, and in the Pacific. Portugal assumed similar rights in the Atlantic South of Morocco and in the Indian Ocean.
- This concept of ownership of the seas, however, disappeared with the evolution of the doctrine of the “freedom of the seas”. This doctrine was propounded by a young Dutch jurist Hugo Grotius, in his work “Mare Liberum”, which appeared in 1609.
- Grotius influence was great although at first he was criticized and effectively replied to by the well-reasoned treatises of William Welwood and John Selden which countered the basic postulates of Mare Liberum.
- It has never been contended that there is some small distance to seaward from the shores of a coastal state, to which the limited sovereignty of that state extends.
- The basis of the concept of the territorial sea is the “security” needs of the coastal state. The interests of the coastal state demand that it should have exclusive possession of its shores, to be able to protect its subjects against attack, invasion, and injury and to protect its revenues.
- The basis of the concept of the territorial sea is the “security” needs of the coastal state. Bynkershoeck another Dutch jurist propounded a maxim i.e. “the dominion of the land ends where the power of arms terminate”.
- The doctrine of the free seas evolved during the beginning stages of the ignominious mercantile-colonial era and became a perfect device in the hands of the European maritime powers to economically exploit and politically subjugate the Asian and African states.
- This “freedom” allowed highly injurious or destructive activities such as testing of nuclear weapons, use of the seas as a dumping ground for radioactive wastes, aerial and underwater surveillance and a host of other acts that were not friendly.
- The small and poor nations of the “international community” which were only the objects of the law of the sea and not its subjects, could only submit and suffer when this “freedom” was being vigorously exercised by the few rich industrialized nations.
- The continental shelf is the shallow part of the sea bottom adjacent to the land. It is an underwater base on which the landmass reposes. It may also be regarded as the submerged edge of the continents. Scientifically, the term “continental shelf” refers to that part of the sea bottom which is adjacent to and surrounds all landmasses; it extends from the seashore to that depth at which the sea-bed markedly falls off to significantly greater depths.
- The initiative in asserting jurisdiction for drilling purposes beyond the territorial sea was taken by the United Kingdom under the exigencies of wartime when exploitation of the oil fields beneath the Gulf of Paria between Trinidad and Venezuela became urgent.
Gulf of Paria Treaty (1942):
The main features of this treaty are as follows-
- Some of the most basic fundamental features of the Paria Treaty are important and noteworthy as some of the subsequent Proclamations by various other states seem to have borrowed those features.
- The scenario of the Paria Treaty was the oil potential of the area, and also the availability of the much needed natural resources which was the main inspiration.
- The treaty defined submarine areas as consisting of the sea-bed and subsoil outside of the territorial waters.
- The treaty recognized not only the acquired rights but also the right that may be lawfully acquired by the parties in the future.
- The treaty preserved the status of the superjacent waters of the submarine area and the freedom of navigation in those waters. It is noteworthy that the treaty makes no mention of freedom of fisheries in that area.
- The treaty involved a delimitation of the submarine areas between two opposite nations.
Truman Proclamation (1945):
The basic features of this proclamation are as follows-
- There is however a substantial body of expert opinion that would treat the Truman Proclamation of 1945 as the real starting point of the development of the modern concept of the continental shelf. President Harry S.Truman of the U.S.A. made the historic Proclamation regarding U.S. claims over its continental shelf on 28 September 1945.
- The above-mentioned statement may be regarded as the axis around which the Truman Proclamation revolves. The statement seeks to expound the basic idea of the continental shelf doctrine and postulates five main bases for justifying the exercise of jurisdiction and control over the shelf and its resources.
- Such an exercise of jurisdiction and control by the contiguous state is reasonable and just.
- Effective exploration of the shelf resources depends upon cooperation and protection from the coastal state.
- The continental shelf is an extension of the landmass of the coastal state and thus naturally appurtenant to it.
Geneva Convention on Continental Shelf (1958):
It is defined under Article 1 of the 1958 Convention, irrespective of the geological meaning of the term “continental shelf” as a matter of law the continental shelf extends at least to a depth of 200 meters. Of course, it extends beyond that limit “to where the depth of the superjacent waters admits of the exploitation of natural resources”.
The DICTA in the Continental Shelf Cases (1969):
- subsequent to the Truman Proclamation, the International Court of Justice in the North Sea Continental Shelf Cases, referred to the continental shelf as the “natural prolongation” of the land territory of the coastal state.
- Though the dispute between the Federal Republic of Germany, on the one side and the Netherlands and Denmark on the other, related to the demarcation of the continental shelf boundary in the shallow North Sea submarine area, the observations of the Court in this historic judgment are of profound and far-reaching significance.
- Facts of the case briefly stated are as follows: Norway, Denmark, and the Netherlands on the Eastern side determined the respective boundaries of Continental Shelf by a series of agreements on the basis of the Principle of “median line” under Article 6 of the Continental Shelf Convention. Agreements were also concluded within Germany (FRG) and the Netherlands and between Germany and Denmark under which only partial delimitation of shelf boundaries could be affected. Germany would not reach an agreement regarding the remaining boundaries because the Netherlands and Denmark insisted on the application of the equidistant principle to those boundaries. Germany contended that the equidistant principle of Article 6 could not be applied as against her as she only signed but not ratified the convention, that the application of the principle in her case would deprive her of a just and equitable share because the strongly concave character of her coast would pull the boundary line inward, and that such a boundary line would give her a shelf area which would be disproportionate to the extent of her territory.
- Referring to what is considered to be “the most fundamental of all the rules of law relating to the continental shelf” the Court said: The rights of the coastal state in respect of the continental shelf that constitutes a natural prolongation of its land territory into and under the sea exists ipso facto and ab initio by virtue of its sovereignty over the land and as an extension of it in an exercise of sovereign rights for the purpose of exploring the sea-bed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor any special legal acts to be performed.
- Third United Nations Conference on the Law of the Sea under Article 76 significantly extended the area of the continental shelf. This zone now extends beyond the area of the shelf to the sea-bed and subsoil of the submarine areas as far as the outer edge of the continental margin.
Article 76, Paragraph 1, of the 1982 Convention defines the continental shelf as follows:
“The continental shelf of a coastal state comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.”
Where the continental shelf extends beyond 200 nautical miles then the convention has adopted the double criteria i.e. firstly 350 NM of spatial limit from the baselines and secondly 100 NM from a point where the depth of the sea is 2500 mts. This formula is known as the Biscuits Formula which was part of the proposal submitted by the U.K. and U.S.S.R
Here are other notes of Company Law and Criminal Procedure Code II which you should refer for exams-