united nations conference on the law of the sea - legal.un.org

United Nations Conference on the Law of the Sea

Geneva, Switzerland 24 February to 27 April 1958

Documents: A/CONF.13/C.4/SR.6-10

Summary Records of the

6th to 10th Meetings of the Fourth Committee

Extract from the Official Records of the United Nations Conference on the Law of The Sea, Volume VI (Fourth Committee (Continental Shelf))

Copyright © United Nations 2009

Sixth meeting — 10 March 1958

not call for any limitation other than what was necessaryto delimit the boundaries between two States, borderingon the same shelf, whose coasts were adjacent to oropposite each other. That form of exploitation was notsubject to any legal limitation by reference to the depthof the superjacent waters.13. He considered that, as a precaution against mis-understanding, the term " natural resources " neededdefinition. His delegation would submit certain amend-ments in due course.14. The Netherlands Government agreed with the Inter-national Law Commission's view that the waters abovethe continental shelf were high seas.15. There appeared to be some overlapping betweenarticle 61, paragraph 2, and article 70 ; it should bepossible to deal with the subject either under section I,sub-section C (Submarines, cables and pipelines) orunder section III (The continental shelf).16. The phrase " unjustifiable interference " in article71, paragraph 1, was too vague ; he stressed that in thebalancing of the various interests involved the interestsof navigation should take precedence.17. The safety zones referred to in paragraph 2 of thesame article should be clearly defined, and his dele-gation would submit amendments 2 proposing a safetyzone of a radius of fifty metres around single instal-lations, from which all ships except exploitation craftwould be barred as a fire-prevention measure, and afurther provision concerning groups of installations builtat distances of less than one mile from each other underwhich it would be compulsory for the coastal State togive due notice of such groups and of additions to them,to mark them on all charts and to provide them withsuitable identifying lights and fog signals. All vesselsexcept exploitation craft and ships of less than 500registered tons would be forbidden to enter the areaoccupied by such groups of installations.18. The Netherlands Government gave its full supportto article 73, and was in favour of extending the pro-vision contained therein to cover disputes relating toany of the draft articles.

19. The Marquis de MIRAFLORES (Spain) said that,despite its long coast-line, his country had only a narrowcontinental shelf. Hence, it was not some selfish interest,but the wish to contribute to the formulation of rulesacceptable to all States which governed his delegation'sposition. He hoped that the Conference would not letslip the opportunity for establishing the new concept ofthe continental shelf as part of international law. State-ments already made at the Conference showed theimportance which governments attached to the subject.20. Because the concept was new, it was important todefine it clearly. He agreed with the representative ofPanama, who, at the 4th meeting, had stated that theterm " continental base " was to be preferred to " con-tinental shelf ". Article 67 should define the limits of thecontinental shelf on the basis of specific criteria, takingaccount of all submarine zones that formed a geologicalunit with the coast.21. He believed it would be better to avoid using such

expressions as " sovereignty" or " jurisdiction andcontrol" and references to the sea as a res nullius ;rather, the draft provisions should describe the coastalState as the sole owner of the right to explore and exploitthe natural resources of the continental shelf. The rightsin question should be regulated in terms respecting theprinciple of the freedom of the seas, which had so largelyhelped to spread civilisation throughout the world andto create the community of nations. The same principle,applied to outer space, would open new horizons formankind. References to that principle and the conse-quent rights of maritime and aerial navigation, fishingand the laying of cables, should be included in the finaltext. It should also be specified that the natural resourcesto be exploited by the coastal State were restricted tomineral resources, as the International Law Commissionhad originally suggested.22. The Spanish Government would favour the idea ofincluding a reference to a safety zone or a radius of500 metres, or some similar specific and reasonableextent around installations employed in the explorationand exploitation of the resources of the continental shelf.23. Spain supported article 73, since it did not excludepeaceful means of settlement other than submission tothe International Court.24. He would make detailed comments at a later stageand propose amendments where suitable.

The meeting rose at 4.15 p.m.

SIXTH MEETING

Monday, 10 March 1958, at 10.45 a.m.

2 Proposal subsequently circulated as document A/CONF.13/C.4/L.22.

Chairman: Mr. A. B. PERERA (Ceylon)

Consideration of the draft articles adopted by theInternational Law Commission at its eighth session(articles 67 to 73) (A/3159) (continued)

General debate (continued)

STATEMENTS BY MR. PFEIFFER (FEDERAL REPUBLIC OFGERMANY), MR. ARREGLADO (PHILIPPINES) AND MR.CACCIAPUOTI (UNITED NATIONS EDUCATIONAL,SCIENTIFIC AND CULTURAL ORGANIZATION)

1. Mr. PFEIFFER (Federal Republic of Germany),while expressing his government's warm appreciation ofthe valuable work done by the International Law Com-mission, said that the purpose of the memorandum(A/CONF. 13/C.4/L.1) which his delegation had sub-mitted on the exploration and exploitation of the subsoilof the high seas was to propose a system in closer accordwith the principles that the International Law Com-mission had so vigorously affirmed in various passagesin its reports, more specially in relation to the freedomof the high seas as defined in article 27. Freedom toexplore or exploit the subsoil of the high seas shouldbe included among the other freedoms established bythat article. That freedom had always existed potentially,but it had only recently acquired practical importanceas a result of technological discoveries.2. His delegation welcomed that development, for itbelieved the exploitation of the subsoil of the sea to be

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advantageous, not only to the coastal State, but to thewhole of the international community as well. It felt,however, that when put into effect, that freedom shouldbe subject to the same rules as the other forms of free-dom of the high seas in relation to interference withnavigation, fisheries, etc. It was difficult to understandwhy, when the international community had establishedrules binding on everybody for comparable matters, thesame road should not be followed as regards the subsoil.Instead of that, the International Law Commission'sdraft conferred sovereign rights on the coastal State.His delegation saw a serious danger in that position, andcertain statements on the epicontinental sea alreadymade at the Conference, and the Mexican Government'sproposal (A/CONF.13/C.4/L.2), only confirmed it inits fears. Sovereign rights invariably tended to expandand States tended to be less and less willing to accepta restrictive interpretation.

3. His delegation felt therefore that it was justified inproposing a system based on regulated freedom. Underthat system, the international community would establishthe basic rules for the exploration and exploitation ofthe subsoil of the sea, and those rules would be super-vised by the coastal State, any disputes being settled byan international court. That would have the effect ofkeeping the legislative and executive functions separate,a procedure amply justified by history.4. The advantages of the system proposed by his dele-gation were, first, that it would preserve intact theprinciple of the freedom of the high seas, and thecontinental shelf outside the territorial sea would remaincommon property available to all peoples alike.Secondly, exploitation of the subsoil resources would befacilitated to the advantage of all, the use of the appro-priate techniques would be ensured, abuses would beprevented and the other freedoms of the high seassafeguarded. Thirdly, the coastal State would act not asa sovereign power, but in virtue of a mandate from theinternational community, to which it would remainresponsible. On that point, the suggestion in paragraph 3of his delegation's memorandum that the coastal Stateshould " act on behalf of the international community "meant that that State would exercise its supervisorypowers in the common interest of all users of the highseas. Fourthly, as there would be no sovereign rightsover the continental shelf, there would be no need toseek for a delimitation of the continental shelf in breadthor depth. Lastly, as the regulation would only lay downcertain fundamental principles it would be sufficientlyelastic to make it possible to establish regional agree-ments to take account of local conditions.

5. His delegation recommended that system as beingmore appropriate to future developments than was theCommission's draft and as affording a better way ofreconciling the interests of the coastal State with theneeds of the international community. If some suchbasic principles could be agreed, there would be nodifficulty in working out the details and his delegationwould, in due course, propose the setting up of a sub-committee to produce a draft on the basis of thememorandum.

6. Mr. ARREGLADO (Philippines) remarked thatconcept of the continental shelf in article 67 was limitedto that portion of the seabed and subsoil of the sub-

marine areas adjacent to the coast which extendedoutwards underneath the high seas. The article did notapply to the island shelves of an archipelago like thePhilippines which formed a continuous submarine plat-form around the perimeter of the archipelago and spreadinwards towards its centre, and which were considered,both under the existing national legislation of thePhilippines and under generally recognized rules andprinciples, to constitute part of the internal waters of thecoastal State.7. In the absence of an internationally accepted limitof the breadth of the territorial sea, any reference to itin article 67 would confuse rather than clarify the legallimits of the continental shelf. Moreover, most of therules contained in the articles relating to the continentalshelf were intended to delimit the rights of coastal Stateswith regard to the superjacent waters. For all thosereasons, the delegation of the Philippines felt that thewords " but outside the area of the territorial sea " inarticle 67 should be replaced by " underneath the highseas ", which corresponded more closely to the wordingof the United States proclamation of 1945, a UnitedKingdom Order in Council of 1948 relating to theboundaries of the colony of the Bahamas, and Philippinelegislation on the subject of the continental shelf.8. Article 68 should be regarded as merely declaratoryof the sovereign rights of the coastal State to explore andexploit the natural resources of its continental shelf;the existence of such rights was not derived from anyspecific provision of international law, but was inherentin the sovereignty which the coastal State exercised overthe adjacent land territory.9. At the same time, the Philippine delegation fullysupported the principle that the exploration and ex-ploitation of the natural resources of the continentalshelf under the high seas must not result in any unjustifi-able interference with commercial navigation in thesuperjacent waters.10. While agreeing that the construction and main-tenance on the continental shelf of installations necessaryfor the exploration and exploitation of its naturalresources must be regulated by means of conventionalarrangements, the Philippine delegation felt that thewording used in article 71, paragraph 2, involved acontradiction in terms when it stated that " the coastalState is entitled to construct and maintain " such instal-lations " subject to the provisions of paragraphs 1 and5 of the said article ", since that made it appear as ifthat right was conferred by some rule of internationallaw, whereas in fact it was necessarily included amongthe sovereign rights which the coastal State exercisedover the continental shelf under article 68.11. The Philippine delegation would submit during thesecond stage of the Committee's work further obser-vations and, if necessary, concrete proposals on thearticles under consideration.

12. Mr. CACCIAPUOTI (United Nations Educational,Scientific and Cultural Organization), speaking at theinvitation of the CHAIRMAN, presented a memoran-dum by the Secretariat of his organization entitled" Scientific Considerations Relating to the ContinentalShelf" (A/CONF.13/2), together with resolutions byand a communication from the International Council ofScientific Unions on the articles concerning the conti-

Seventh meeting — 11 March 1958

nental shelf, transmitted by UNESCO (A/CONF. 13/28).

13. Mr. NIKOLIC (Yugoslavia) asked the represen-tative of Mexico whether the expression " sovereigntyover the seabed and subsoil of the continental shelf andover the natural resources thereof " in his delegation'sproposal (A/CONF. 13/C.4/L.2) was intended toinclude fishing rights.

14. Mr. GOMEZ-ROBLEDO (Mexico) gave the pro-visional answer that his delegation's intention had beento include certain types of fish found on the continentalshelf, but said he would give a further clarification later.

The meeting rose at 11.20 a.m.

SEVENTH MEETING

Tuesday, 11 March 1958, at 11 a.m.




STATEMENTS BY MR. ALVAREZ AYBAR (DOMINICAN REPU-BLIC), MR. CAICEDO CASTILLA (COLOMBIA), MR. LETTS(PERU) AND MR. QUARSHIE (GHANA)

1. Mr. ALVAREZ AYBAR (Dominican Republic) saidthat there were two main schools of thought with respectto the continental shelf. The first was in favour of someform of international supervision, and the second wasin favour of some form of State action by individualStates. The Federal Republic of Germany in its memo-randum (A/CONF. 13/C.4/L.1) and the representativeof China (4th meeting) had expressed support for inter-national supervision. However, as the International LawCommission had said in paragraph 3 of its introductorycommentary on the section relating to the continentalshelf, internationalization could not provide a solutionto the problem, since it would not ensure the effectiveexploitation of the natural resources of the shelf.

2. Article 67 gave firm backing to the view that therights in the continental shelf should be vested in thecoastal State. The final clause, extending the limit of theshelf beyond a depth of 200 metres to where the depthof the superjacent waters admitted of the exploitation ofthe natural resources of the continental shelf, had beenadded as a result of the decision reached at the Inter-American Specialized Conference on " Conservation ofNatural Resources : The Continental Shelf and MarineWaters " held at Cuidad Trujillo in 1956. If the basicprinciple of article 67 were accepted, three possibilitiesoffered themselves : either the extent of the continentalshelf could be delimited by reference to a purely oceano-graphic line ; or it could be fixed at the line where theshelf descended to a depth of 550 metres, as the Nether-lands representative had proposed (5th meeting) ; or,lastly, it could be defined in the terms used in the Inter-national Law Commission's draft.

3. His delegation supported the draft of article 67 forthe following reasons. The memorandum on the con-tinental shelf by the secretariat of the United NationsEducational, Scientific and Cultural Organization(UNESCO) " Scientific Considerations Relating to theContinental Shelf" (A/CONF. 13/2) made it clear thatthe geological and oceanographical knowledge of thecontinental shelf was too incomplete to form a satis-factory basis for international law; moreover, thegeological concept would bring within the jurisdictionof a State many depths or depressions, submarine valleysor deeps, although at a depth exceeding 200 metres andwhether exploitable or not at such a depth, which wouldcreate situations that would be unjustifiable in law.Further, the international law relating to the continentalshelf should take account of economic and historical noless than of geological factors. So far as the Netherlandsproposal for a 550-metre line was concerned, he wouldconsider that the terms of article 67 were so general thatthey allowed for such a possible extension. The thoughtunderlying that article was that the continental shelf wasa prolongation of the land and, therefore, subject toconsiderations of contiguity or proximity. The decisivecriterion was that of proximity. Exploitation beyond thepoint at which the relationship of proximity ended mightbe based on occupation, but it would not be covered bythe provisions of articles 67 and 68.

4. His delegation accordingly supported the presentdraft of article 67, not as providing a perfect solution,but as offering the best possible prospect of agreementand the best basis for the new legal institution of thecontinental shelf. It might be said that such words as" contiguity " or " proximity " (cf. paragraph 8 of com-mentary on article 68) were too vague to be used aslegal terms, and the same criticism had been voicedconcerning the expressions " reasonable measures"(article 70) and " unjustifiable interference " (article 71).However, similarly vague expressions, equally open tointerpretation, were used in private law. The use ofsuch expressions was one reason why provision hadbeen made in article 73 for the settlement ofdisputes.

5. He did not feel that, if the system proposed by theInternational Law Commission were adopted, therewould be any conflict with the interests of scientificresearch with which UNESCO was concerned.

6. The Conference had the opportunity of decidingwhether the existing practice of unilateral action byStates would be replaced by international agreement.

7. Mr. CAICEDO CASTILLA (Colombia) stated thathis country's legislation contained no provisions on thesubject of the continental shelf, as the ColombianGovernment had always hoped that the matter wouldbe regulated by international agreement. PresidentTruman's proclamation of 1945, though it marked thebeginning of an important and salutary development,nevertheless represented a national and unilateral view-point ; it had been followed by many other statementsof a national character, often conflicting in nature. Therewas need for general solutions which, while representinga new approach in international law, did not undulycontradict existing traditional rules. In other words, whilesafeguarding the rights of coastal States, those solutions

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should also protect the general interests of the com-munity of nations.

8. The Colombian delegation believed that the Inter-national Law Commission's articles on the continentalshelf fulfilled all those conditions, though it would offersuggestions for the amendment of certain provisions. Itagreed with the definition of the continental shelf givenin article 67. If the main — indeed, the sole — purposeof the establishment of that juridical institution were theexploration and exploitation of the natural resources, thelogical criterion for its definition should be that ofpossible exploitation. Limitation of the continental shelfby fixing a maximum depth of 200 metres would betantamount to disregarding continuous scientific progressin respect of exploitation. The convention which wouldbe adopted might, in the course of time, becomeineffective and out of date or require constant sub-stantive modification, whereas any work of codificationwas necessarily designed with the purpose of retainingits validity as long as possible.

9. Far from granting a monopoly over the continentalshelf to certain coastal States, as some delegations hadargued, the definition given in article 67 ensured equalrights and opportunities for all coastal States. The onlypossible inequality arising from the terms of the articlewas that technically more advanced States might possessbetter means of exploiting the natural resources of thecontinental shelf than other States.

10. The Colombian delegation thought therefore that anyinternational body which might be set up for scientificresearch and assistance should be asked to study thepossibilities of financing the economically less developedcountries and giving them appropriate assistance withregard to the exploration and exploitation of theircontinental shelf.

11. Finally, the Colombian delegation welcomed the factthat the wording of article 67 corresponded to thatrecommended by the Inter-American Specialized Con-ference on " Conservation of Natural Resources : TheContinental Shelf and Marine Waters " held at CiudadTrujillo in March 1956.12. He expressed the opinion that article 68 should beamended to read " The coastal State exercises sovereigntyover the continental shelf", because the term " sove-reignty " was the best one to use in determining the rightsof the coastal State. A number of governments, includingthose of the United Kingdom and France, upheld theview that the coastal State exercised the same rightsover the continental shelf as over its land territory- Herecalled, however, that at the conference held at CiudadTrujillo in 1956 the Colombian delegation had agreedto the words " jurisdiction and control" in place of" sovereignty "; the present conference misht adopt thesame wording to achieve the widest possible measure ofagreement.

13. The Colombian delegation had no objection toarticles 69, 70 and 71 and warmly supported article 73,because Colombia's international policy was traditionallybased on the principle of the peaceful settlement ofinternational disputes by compulsory juridical means.

14. The Colombian delegation regarded article 72 asbeing particularly important; it was based on the for-

mula proposed by the committee of experts on thedelimitation of territorial waters; that formula wasthe impartial expression of the technique under whichthe delimination of the continental shelf of adjacentStates or whose coasts were opposite to each othershould be constituted by the median line every pointof which was equidistant from the baselines fromwhich the width of the territorial sea of each countrywas measured. Colombia accepted that system, which itwould not hesitate to apply in the delimitation of itsown continental shelf, but would like the drafting ofarticle 72 to be improved. The provision under whichthe delimitation could be determined by agreementbetween the States concerned was obvious and, conse-quently, unnecessary, because sovereign States couldalways solve their problems in the manner that theyconsidered most suitable. But it would not be right toadvocate negotiation as the first step and as a generalsystem, rather than the application of the general rulesuggested by the technique, for that would lead toendless disagreement. In an attempt to codify the lawof the sea, it must not be overlooked that the aim inview was to prevent difficulties arising or to establishprecise rules for overcoming them. That was the onlyway of achieving solid and fruitful results. The methodthat should be followed was that of jurists endeavouringto establish a lasting juridical system. Clear and equit-able rules which would avoid or eliminate the possibilityof future disputes must be formulated. According to thetext of article 72, it only needed the refusal of one ofthe States concerned to conclude an agreement for thesystem of median lines to be applicable. Moreover, theterm " special circumstances " was vague and could giverise to disagreement. In that connexion, his delegationappreciated that certain exceptional situations justifiedspecial regulations, but the appreciation of the circum-stances determining such situations should not be leftto one of the parties concerned.

15. In conclusion, he expressed agreement with theview put forward by the representative of Panama atthe Committee's 4th meeting to the effect that theproposed international convention should contain a newarticle proclaiming the freedom of scientific researchinto the continental shelf.

16. Mr. LETTS (Peru) said that on 1 August 1947 Peruhad proclaimed its sovereignty over a maritime zonewhich included the continental shelf, and had followedthat proclamation by the Declaration of Santiago, whichbrought its policies into line with those of Chile andEcuador. In so acting, his country had, like other States,helped to create an international law of the sea arisingout of new requirements not covered by existing law. Indefining the law concerning the continental shelf, theConference would not merely be codifying existing lawbut legislating in the strict sense of the word.

17. The memorandum of the Federal Republic ofGermany stated that " According to the internationallaw in force, the coastal State has no rights over thecontinental shelf beyond the outer limit of its territorialsea" (A/CONF.13/C.4/L.1, para. 2). He could notagree with the underlying argument that internationallaw was based solely on treaties ; indeed, most of therules relating to the sea, including those concerning theterritorial sea, had not originated in treaty law. Nor

Eighth meeting — 12 March 1958 11

could he agree with the contention in the same docu-ment that " anyone is free to explore and exploit thesubsoil of the sea outside the territorial sea ", for thatview would produce the absurd consequence that a Statecould exploit the natural resources of the continentalshelf at a short distance from the coast of another State,in defiance of the accepted principle of proximity, whichwas the basis of the sovereign rights of the coastal Stateover the continental shelf adjacent to its territory.

18. The concept of the continental shelf, like that ofthe inherent right of the State to exploit and conserve thenatural resources of the sea near its coast, was aninnovation, but neither of those ideas constituted abreak with any former international law ; they weremerely new developments attributable to scientific pro-gress, and it was consistent with the principles ofinternational law for States to claim rights not contem-plated by pre-existing rules.

19. The International Law Commission had applied verydifferent principles to two similar situations ; it hadrecognized the sovereign right of the coastal State toexploit mineral resources, principally oil, which couldonly be exploited by industrialized countries, but notsimilarly sovereign rights over the living resources of thesea, on which many coastal States depended for thelivelihood of their people. The right of unrestrictedfishing on the high seas had been founded on the beliefthat the living resources of the sea were inexhaustible ;but modern fishing methods had disproved that view,and there was therefore no longer any basis forunrestricted fishing rights. His delegation considered thatit was only logical that States claiming rights over thecontinental shelf should also claim rights over thesuperjacent waters. Similar views had been expressedby the Government of Iceland (A/CONF.13/5,section 8).

20. Mr. QUARSHIE (Ghana) said that the Conferencein its deliberations should rise above purely nationalclaims and interests, and should be guided by the desireto perform a service of lasting value to the communityof nations as a whole.

21. His delegation was in general agreement with theprovisions of articles 67 to 73. It was anxious, however,that those provisions should be as equitable as possible.22. While the definition proposed in article 67 wasreasonably sound from the purely legal viewpoint, it didnot take sufficient account of the economic and socialinterests of certain smaller States and might operate tothe disadvantage of those countries, of which Ghana wasone, which possessed a very narrow continental shelf asa result of a sharp drop of the seabed near the coast.Under that definition the limit of Ghana's continentalshelf would not be far removed from the limit of itsterritorial sea. Since, in addition, Ghana depended almostexclusively on fisheries for its protein supply, and wasmoreover a young country with relatively little technicalexperience and equipment, the problems arising fromexposing it to competition with States of greatly superiortechnical ability in the exploitation of the livingresources of the sea would be extremely grave.

The meeting rose at 11.50 a.m.

EIGHTH MEETING

Wednesday, 12 March 1958, at 10.45 a.m.




STATEMENTS BY MR. NIKOLIC (YUGOSLAVIA), MR. JHIRAD(INDIA), MR. LUTEM (TURKEY), MR. TAANING (DEN-MARK), MR. KANAKARATNE (CEYLON), MR. NAFICY(IRAN) AND MR. BAZ (LEBANON)

1. Mr. NIKOLIC (Yugoslavia) paid a tribute to theInternational Law Commission for its patient andconscientious work on the complex problem of thecontinental shelf. Although the concept of the continen-tal shelf, which was a relatively new one in internationallaw, placed some restriction on the age-old principle ofcomplete freedom of the high seas, economic needs madeits recognition essential. Some thirty States had alreadypublished unilateral declarations extending theirsovereignty to submarine areas beyond the limits of theterritorial sea. A new international practice had thusbeen created and its substance was not contested.

2. The proposal in the memorandum submitted by theFederal Republic of Germany (A/CONF.13/C.4/L.1)aimed at abolishing the institution of the continentalshelf and replacing it by the principle that anyone wasfree to explore and exploit the subsoil of the sea outsidethe territorial sea. That was an attempt to reverse asituation already accepted as established internationalpractice. The International Law Commission hadconsidered similar proposals in the past and had rejectedthem on that and other grounds. The Yugoslav dele-gation endorsed the Commission's decision and opposedthe proposal submitted by the Federal Republic ofGermany, which it regarded as a typical effort to restrictto the advantage of the more highly industrializedcountries the interests of those which had not yetreached the necessary level of development.

3. Another important point in which clear rules wererequired was the relationship between the right of acoastal State to its continental shelf and the claims ofother States to exploit in that area of the high seas theliving resources attached to the seabed. His delegationtherefore did not oppose the formal and collectiverecognition of what was already an established legalinstitution, though it was not in agreement with some ofthe provisions of the articles drafted by the Inter-national Law Commission. For instance, he criticized astoo vague the definition of the maximum depth of thecontinental shelf (article 67), that of the boundaries ofprotective zones for technical installations (article 71)and that of the boundary between adjacent continentalshelves (article 72).

4. The proposals of certain States to the effect that therights of coastal States should be extended beyond thelimits contemplated by the International Law Commission— proposals which were not necessarily linked with

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the exploitation of the continental shelf and its super-jacent waters — represented a danger to the principleof freedom of the high seas. Moreover, the institutionof the continental shelf should not exempt the coastalStates from duties with regard to the regulation andconservation, in the general interests of the internationalcommunity, of the living resources of the high seas inthe area of the continental shelf.

5. Mr. JHIRAD (India) said that his delegation was insubstantial agreement with the articles under conside-ration, and congratulated the International LawCommission on its work. Referring to criticismsaddressed to the definition of the continental shelf givenin article 67, he remarked that a distinction should bedrawn between the geological meaning of the term andits significance from the economic viewpoint; it might,indeed, be preferable to employ two entirely differentterms. While at the present stage of economic develop-ment the possibility of exploiting the natural resourcesof the seabed and subsoil of submarine areas in theproximity of a coast was limited to the confines of thecontinental shelf as defined in geology, that need notalways remain the case. Moreover, if the criterion ofdepth alone were applied, a situation might arise whereany State would be free to exploit the natural resourcesat a very short distance from the coastal State. In theIndian delegation's opinion, the elastic definitionproposed in article 67 would suffice to cover normalrequirements.6. Commenting on the objection raised by somedelegations to the effect that the definition as it stoodwould operate to the disadvantage of States possessingan exceptionally narrow continental shelf, he remarkedthat the case was to some extent covered by the state-ment contained in paragraph 8 of the International LawCommission's comments on article 67. He felt, however,that the criteria proposed in that text were insufficientlyobjective, and expressed readiness to consider anyreasonable proposal that would make for the improve-ment of that or, indeed, any other article.

7. With regard to article 68, the Indian delegationopposed the suggestion that the natural resourcesreferred to should be limited to mineral resources. Thetechnical possibilities of many under-developed Stateswere limited to the exploitation of organic resources ;the sovereign rights of coastal States in respect of thecontinental shelf should not exclude the exploitation ofthe flora and fauna living in constant physical andbiological relationship with the seabed, and sedentaryfisheries in particular. Unless that term was interpretedreasonably, there was a danger of wider claims affectingthe character of the superjacent waters as high seas.

8. Similarly, the Indian delegation opposed the viewthat the right to explore and exploit the continentalshelf should be based on effective occupation andcontrol. The corollary of that theory was that, in theabsence of effective occupation and control by thecoastal State, any other State would be entitled to takeover such control. The adoption of that principle wouldseriously compromise the peaceful co-existence of States.Likewise, the proposal contained in the memorandumsubmitted by the Federal Republic of Germany(A/CONF.13/C.4/L.1) was fraught with dangers. Any

attempt to treat the area of the continental shelf ashaving the same character as the high seas was likelyto be countered by claims intended to curtail theexisting principle of freedom of the high seas. Further-more, despite the safeguards envisaged in the memoran-dum, the effect of the proposal would be to encourageirresponsible exploitation, thus impairing harmoniousrelations between nations.

9. In its effort to strike a balance between the specialinterests of the coastal States and those of the inter-national community at large, the International LawCommission had adopted certain subjective criteriaexpressed in terms such as " unjustifiable interference "," reasonable distance", etc. Similar subjective testswere laid down in Indian national legislation ; theywere, to some extent, inevitable where a comparativeassessment of different interests was involved. Theremedy in the event of a dispute, failing other meansof settlement, was a judicial decision; the Indiandelegation accordingly accepted article 73, subject,however, to the declaration made in pursuance ofArticle 36 of the Statute of the International Court ofJustice.

10. Mr. LUTEM (Turkey) stated that his delegationwas prepared to accept articles 67 to 73 as a basis fordiscussion. The concept of the continental shelf wasa recent one in international law, embodied only inunilateral declarations; the view that the articlesprepared by the International Law Commission alreadyformed part of positive international law was invalidatedby well-known arbitration decisions. Whereas theproblem of fisheries in the high seas was alreadyregulated by a number of regional agreements, that ofthe continental shelf formed the subject of only onesuch agreement. It was to be hoped that the work of theConference would result in the admission of the conceptof the continental shelf in international law.

11. With regard to the definition of the continentalshelf given in article 67, Mr. Liitem recalled the variousstages by which the International Law Commission hadarrived at the present definition. In the opinion of hisdelegation, the second of the two proposed criteria wasso ambiguous that, far from avoiding conflicts, it mightactually create them. A precise delimitation of thecontinental shelf was essential.

12. Similarly, the words " a reasonable distance " inarticle 71, paragraph 2, were insufficiently clear andwere likely to lead to different interpretations andpossibly abuses. The suggestion mady by the represen-tative of Sweden at the 4th meeting of the Committeeto the effect that a maximum width of 500 metresshould be adopted for the establishment of safety zonesaround installations on the continental shelf wouldobviate future disagreement.

13. Mr. TAANING (Denmark) remarked that muchcould be said in favour of limiting the rights of coastalStates in respect of the continental shelf to mineralresources only. If that interpretation were adopted, thespecial rights of coastal States with regard to theexploitation of animate and other organic resources ofthe seabed of the continental shelf should, however, besafeguarded by the establishment of special fishery

Eighth meeting — 12 March 1958 13

limits, provisions for conservation measures in the areaadjacent to the territorial sea, etc. Denmark was not atpresent interested in the exploitation of mineral resourcesin the seabed, but since both the Faroes and Greenlandwere involved, the situation might change in the future.A depth of more than 200 metres might have to be con-sidered with regard to the Faroes. If, however, the pro-visions of article 68 extended to organic resources aswell, all parts of the Danish Kingdom would beinterested.14. The Danish delegation would support some of theamendments to articles 67 to 73 proposed by otherdelegations. In particular, it would prefer the words" sovereign rights" in article 68 to be replaced by" control and jurisdiction "; any reference to sovereign-ty, even if followed by a restrictive clause, might causedifficulties during international armed conflicts or withregard to scientific research.15. The principle stated in article 71, paragraph 1, washighly important, as also was the rule set forth inparagraph 4 of the same article. The Danish delegationfelt that that maximum radius of the safety zone estab-lished around installations on the continental shelfshould be stated in article 71, paragraph 2, and not onlyin the International Law Commission's commentary onthe article as at present.

16. Commenting on the question of the freedom ofresearch, he would draw attention to paragraph 10 of theInternational Law Commission's commentary on article68 and to the communication from the InternationalCouncil of Scientific Unions transmitted by UNESCO(A/CONF. 13/28). The argument advanced in paragraph6 of that communication that it was impossible to drawa valid distinction between the seabed and the super-jacent waters as far as the environment of the geophysi-cal study of the ocean bottom was concerned mightequally apply to many forms of important biologicalresearch into the animate life of the continental shelf.All scientific research was carried out with the intentionof open publication and was of interest not only tocoastal States but to mankind in general. The fact thatthe International Law Commission in its commentaryexpected the coastal State to refuse its consent to scien-tific research, if only exceptionally, was causing alarmin scientific circles. The only way to preserve thefreedom of research was to include in the relevant articlea statement to the effect that scientific investigations inthe continental shelf would be conducted freely, providedthe coastal State or States were duly notified. Theywould not have the right to prevent such investigations,but would be entitled to follow and observe the scien-tific work carried out.

17. Mr. KANAKARATNE (Ceylon) said that hiscountry's position as an island, its situation on worldtrade routes and the dependence of its inhabitants on theliving resources of the sea made its interest in the lawof the sea as vital as that of the greatest of the maritimePowers.18. In passing the Pearl Fisheries Ordinances of Ceylonof 1925, Ceylon had been one of the first States toembody in its legislation the concept of the continentalshelf, which was based on geological fact. Ownership ofthe seabed of its territorial sea by a coastal State was

fully accepted, and it had now become necessary toallow the coastal State to exercise certain sovereignrights over its continental shelf. These rights were recog-nized by draft article 68, subject to the preservationunder article 69 of the principle of freedom of thesuperjacent waters and the airspace above them. Hisdelegation would speak further on the actual formulationof those articles at a later stage.

19. He noted that according to paragraph 3 of theInternational Law Commission's commentary to article68, sedentary fisheries were not to be excluded from theregime adopted. Ceylon's rights over its pearl fisherieswere based on immemorial usage and uninterruptedownership, going back as far as the fourteenth century,and he would quote various authorities in support ofthat contention. He felt that those grounds for owner-ship, as applied to fishing rights outside the territorialsea, had not been given adequate consideration by theInternational Law Commission's recommendations.More detailed comments on that aspect would be madeby his delegation in the Third Committee. Some objec-tions had been raised to the concept of the continentalshelf as revolutionary, but it was based on the practiceof a large number of States following the Truman decla-ration of 1945. It was high time that the welter ofunilateral decisions were co-ordinated by the Conferencein a way that would preserve the freedom of the seasand regulate the special interests of the coastal State inthe exploration and exploitation of the natural resourcesof the continental shelf.

20. His delegation would carefully consider the pro-posals submitted by the delegations of Burma (A/CONF.13/C.4/L.3), Mexico (A/CONF. 13/C.4/L.2)and Panama (A/CONF. 13/C.4/L.4) but it could notagree with the opinion expressed by the representativeof the Federal Republic of Germany in its memorandum(A/CONF. 13/C.4/L.1) or accept the body of rulesproposed therein. He would comment later on all thoseproposals. Ceylon agreed with the views expressed bythe International Law Commission in paragraph 4 of itsintroductory comment to the articles on the continentalshelf.

21. His delegation accepted the system embodied inarticles 69 to 73 but would comment later on theexpressions " unjustifiable interference " (article 71) and" justified by special circumstances " (article 72).

22. If the Conference were to bring the InternationalLaw Commission's work to a successful conclusion,some countries would necessarily have to make conces-sions. Ceylon belonged to a part of the world whichwas described as under-developed and had receivedmuch help from wealthier industrial countries, in theform of technical aid, loans, etc. Those countries nowhad an opportunity to give help of a different kind,which would cost them less in money, but would meanmore to the peoples of the less developed countries,because it would recognize their right to develop theexploration and exploitation of the natural resources ofthe seas off their shores and to fish in competition withricher and more powerful countries. For a long periodthe great maritime powers had been able to maintainthe law of the sea at a certain stage through their ownmight; now, however, one half of the world was making

14 Summary records

great strides in developing economically, politically andsocially. That development was the main justificationfor the International Law Commission's statement inparagraph 1 of its commentary to article 71 that " Theprogressive development of international law, whichtake place against the background of established rules,must often result in modification of those rules byreference to new interests or needs ". If those views werefully accepted, the Conference might indeed hope toachieve success.

23. Mr. NAFICY (Iran) expressed appreciation of theInternational Law Commission's work and said that thedraft articles referring to the exploration and exploitationof the seabed were not in conflict with existing legisla-tion in Iran. However, some of the criteria referred to,though suitable for application to open seas, such as theSea of Oman and Iranian waters west of the Straits ofOrmuz, could not apply to shallow waters coveringsubmerged lands, especially if they were of a deltaictype, as in the Persian Gulf. His delegation would accord-ingly submit amendments with a view to making thearticles more applicable to such special conditions as hehad described.

24. Mr. BAZ (Lebanon) said that in spite of variouscriticisms levelled against the legal concept of the conti-nental shelf, as being revolutionary, vague, illogical andso forth, it represented a practical reality and not amere legal fiction. The distinction between the seasubsoil outside the territorial sea and the superjacentwaters, to which objection had been made, was analo-gous to such concepts in private law as the distinctionbetween property and its usufruct. The coastal Statewould not, as some had maintained, be given rights overthe continental shelf outside its territorial sea verysimilar to those it exercised over the territorial sea, sincethe rights were restricted to exploring and exploiting thenatural resources of the continental shelf.

25. Professor Gidel had pointed out that the concept ofthe continental shelf had a practical basis in that it wasnecessary for a coastal State to protect itself against thepossibility that other States might undertake exploitationof its continental shelf at short distance from its shores.Many States had recognized the new concept in theirlegislation and hence it had become necessary to embodyit in international law. It was true that time would bringmore accurate knowledge of the continental shelf, butthere was no need to wait so long before laying downthe principles that should govern the continental shelf.

26. The principle of the freedom of the high seas madeit necessary to set an exact limit to the continental shelf,and he felt that it would be necessary to amend article67 by deleting the clause extending the continental shelfbeyond the depth line of 200 metres, since that extension,in conjunction with the principles of the territorial seaand the contiguous zone, might make considerableinroads on the high seas. His delegation, while agreeingin principle with the draft articles 67 to 73, would latersubmit an amendment to article 67.


NINTH MEETING

Thursday, 13 March 1958, at 10.45 a.m.




STATEMENTS BY MR. TSURUOKA (JAPAN), MR. GOMEZROBLEDO (MEXICO), MR. FERREIRA BOSSA (PORTU-GAL), MR. BARROS (CHILE), MR. GABRIELLI (ITALY),MR. ROSENNE (ISRAEL) AND MR. DE LA PRADELLE(MONACO)

1, Mr. TSURUOKA (Japan) said that, although theneed to exploit the resources of the continental shelf forthe benefit of mankind was generally recognized, Japanfound it difficult to admit that it was necessary to vesta monopoly of rights in the coastal State. The Con-ference was dealing with a new concept, and it wasaccordingly important that the interests of the wholeinternational community should be considered ratherthan those of any nation or group of nations. His delega-tion agreed with the International Law Commission thatexploitation of submarine wealth should not interferewith the freedom of navigation and fishing on the highseas, and it regarded such a clause as article 71 asindispensable.2. Japan was not able to approve the change of wordingin article 68 mentioned in paragraph 3 of the Inter-national Law Commission's commentary, which had theeffect of including the living resources of the continentalshelf. The creatures living at the bottom of the sea onthe continental shelf were not an integral part of theseabed; the cases of both the so-called sedentaryfisheries and bottom fish had been governed for cen-turies by traditional rules of the international law of thesea and had not caused any difficulty. He would speakfurther on article 68 when the time came to discuss itin detail, but must make it clear that it would be impos-sible for Japan to support any system which would havethe effect of giving the coastal State sovereign rightsover the living resources of the high seas.

3. Mr. GOMEZ ROBLEDO (Mexico) said that by adeclaration of October 1945, his country had been oneof the first to claim rights over the continental shelfand its natural resources, on the grounds that thecontinental shelf was an integral part of the mainland.Mexico was anxious to co-operate in seeking a solutionthat would reconcile the interests of both the coastalState and the international community. Scientific, tech-nical and legal developments over the past ten yearsjustified the establishment of rules governing a domainwhich had hitherto not been regulated by internationallaw.4. His delegation was in general agreement with theInternational Law Commission's draft, whichrepresented a balanced view of established practice withregard to the continental shelf. However, a largeconference of plenipotentiaries such as the present onemight be better able in some cases to reach solutionsconsonant with the facts and with the legislation of

Ninth meeting — 13 March 1958 15

individual States. Such solutions, incidentally, weresuggested, often implicitly and even explicitly in thecommentary that the International Law Commission hadadded to the draft articles. That was the basis of theMexican proposal (A/CONF.13/C.4/L.2).

5. The text of article 67 should include a reference tospecial cases — mentioned in paragraph 8 of the Inter-national Law Commission's commentary — of areas ofthe continental shelf separated from it by channelsdeeper than 200 metres, but such special cases shouldnot be dealt with as exceptions to the general rule. Itwould be better to add to article 67 a paragraph to theeffect that the outer limit of the continental shelf wouldnot be affected when it included areas divided from itby channels of a greater depth than that laid down inthe first paragraph of the article. If other delegationssupported that view, he would submit an amendment tothat effect.6. The Mexican proposal made the unequivocal claimthat the coastal State exercised sovereignty over theseabed and subsoil of the continental shelf and overits natural resources, and he believed that there wassome support for that view. It was based on theargument that if the continental shelf was indisputablya continuation of the mainland, it should be governedby the same legal regime, and he would cite authoritiesin support of that contention. The International LawCommission appeared to admit the effects of sovereigntywithout admitting the sovereignty itself, for juris-diction and control could have no other basis thansovereignty.7. In its draft, the Commission, recognized " sovereignrights ", and thus went a step further than in the earlierdraft when the expression " jurisdiction and control"was used. But sovereign rights could not exist apartfrom sovereignty. In paragraph 2 of its commentaryto article 68 the Commission referred to the importanceof not infringing the full freedom of the superjacent seaand the air space above it. Any danger that sovereigntyover the seabed and subsoil of the continental shelfmight lead to claims of sovereignty over the super jacentsea and the air space above it could not be guardedagainst by a mere change of drafting. The sovereigntyof a State over the air space above its territory had notbeen accepted merely as a logical development of itssovereignty over its territory, but on other grounds.

8. His delegation's views were not based on any thoughtof future claims or on sympathy for any particular Stateor group of States, but on an objective view of generallyaccepted international practice, and it was on thosegrounds that Mexico proposed that the coastal Stateshould have sovereignty over the seabed and subsoilof the continental shelf and its natural resources.9. His delegation's proposal omitted any reference tothe exploration and exploitation of the natural resourcesof the continental shelf because it believed thatsovereignty was exercised by the coastal State to theexclusion of other States, as the International LawCommission admitted in paragraph 2 of its commentaryon article 68, and that, accordingly, no form of actualor theoretical occupation by the coastal State wasrequired.10. Mexico did not consider that natural resources

should be limited to mineral resources, and he wouldrefer to the argument advanced by the representative ofPeru (7th meeting) that, whereas, only the industrializedcountries could develop the mineral resources, especiallyoil, many under-developed countries were dependent onthe living resources of the sea for the feeding of theirpeople. A definition of the living resources of thecontinental shelf restricted to those adhering to theseabed was too narrow. The definition should includethe whole group of mineral and vegetable organisms indirect and necessary dependence on the seabed, its legalstatus being determined by the degree of that dependence.The Ciudad Trujillo Conference had set up a workinggroup on the sea bottom, which had described twosystems, the pelagic, living in the waters of the sea, andthe benthonic, which was the conjunction of organismsdepending on the sea bottom. The benthonic groupconsisted of three categories : first, sessile organisms suchas algae, sponges, coral, oysters and pearl oysters ;secondly, organisms depending on the sea bottom butcapable of leaving it and moving above it; and thirdly,species that were capable of moving but that remainedon the sea bottom during the fishing period because offeeding or reproductive requirements. The shrimp hadbeen recognized as a benthonic organism in a UnitedStates government publication, while Public Law No. 31,approved by the United States Congress on 22 May 1953,included fish, shrimps, oysters, lobsters, crabs, spongesand pearl oysters among the natural resources of thecontinental shelf. The Mexican delegation accordinglybelieved that natural resources should include all livingspecies that could be said to belong to the sea bottom,at least at the time when fishing was being carried on,since fishing was the activity which international law wasparticularly concerned to guide and regulate.

11. Mr. FERREIRA BOSSA (Portugal) said thatinternational law, which was a reflection of man's life,must inevitably develop in the course of the centuries.The International Law Commission's draft reconciledestablished principles of international law and newdevelopments brought about by technological progress.The subject of the continental shelf was of concern toPortugal both in its metropolitan territory and in itsoverseas provinces. Portugal, in law No. 2080 of21 March 1956, had decreed that the seabed and subsoilof the continental shelf were the property of the State,and had thus been the first European country to proclaimits rights over the continental shelf in all its territories,though many States in other parts of the world hadalready passed similar legislation. Portuguese law assum-ed that the exploitation of the resources of the continentalshelf placed no limits on the freedom of the high seasand of the epicontinental waters other than thosepermitted by international law. That interpretation wasbased on a distinction between the subsoil of the seaon the one hand and the super jacent waters and theliving resources they contained on the other. The seabedand subsoil of the continental shelf were considered bygeology to be a continuation of the mainland. Althoughobjections had been raised to article 68 and the finalclause of article 67, the rights of the coastal State wererestricted to the exploitation of natural resources, andthe draft articles therefore constituted, not a break withexisting international law, but an amplification of it.The concept was related to the idea known in Roman

16 Summary records

law as jus utendi et abutendi. However, the notion ofjus abutendi had disappeared from modern internationallaw, which was concerned, as was the present conference,with the welfare of mankind.

12. Mr. BARROS (Chile) said that in defining thecontinental shelf the International Law Commission'sdraft articles referred to two criteria, a depth line, andpossible exploitation. Reference to a geological criterionalone would create inequality between States and dis-criminate against those whose continental shelf did not gobeyond the territorial sea. The Chilean Government hadmade that point in its comments on the draft articles onthe continental shelf prepared by the International LawCommission in 1951.1 The criterion of possible exploi-tation had been criticized, but Chile was strongly opposedto removing it from the definition in article 67. On theChilean coast there were coal mines reaching a depth of1,000 metres below sea-level and at a distance of severalkilometres from the mainland; such cases should betaken into account in defining the continental shelf.

13. The rights of the coastal State over the continentalshelf were defined in article 68 as rights to explore andexploit natural resources. That phrase was restrictiveand implied a limitation of the sovereign rights of thecoastal State; yet the provisions of article 69 wouldappear unnecessary if the rights concerned were in factrestricted to exploration and exploitation of naturalresources. Chile accordingly supported the Mexicanproposal (A/CONF.13/C.4/L.2). It was possible thatas a result of technological progress sovereign rightsover the continental shelf might be exercised for purposesnot covered by article 68 in respect of exploitation, andhe would quote as an example the radar installationsset up by the United States on the floor of the Atlanticfar from its shores. He felt therefore that the best coursewould be to recognize the sovereignty of the coastalState over the continental shelf and then attempt tospecify the status of the superjacent waters, over whichclaims of sovereignty had been made by some govern-ments. Chile maintained the position it had taken in1952 that sovereignty over the continental shelf belongedipso jure to the coastal State, and was therefore opposedto the notion that the submarine areas outside theterritorial sea constituted a res nullius, open toexploitation by all. Those sovereign rights, of course,were subject to the limitations imposed by internationallaw, which were covered by article 70.

14. He could not accept a restrictive definition ofnatural resources, which should include not only mineralresources, but also all the resources of the seabed andsubsoil of the continental shelf.15. For many countries the living resources of the seawere essential to the welfare and economic developmentof their peoples, as had been pointed out by therepresentatives of Ghana (7th meeting) and Ceylon(8th meeting). For Chile, its coastal waters were a vitalarea, essential in supplementing the products of themainland. It was therefore the plain duty of the ChileanGovernment to protect the natural resources andregulate their exploration and exploitation.

1 Official Records of the General Assembly, Eighth Session,Supplement No. 9 (A/2456), Annex II.

16. If the continental shelf was recognized as beingunder the sovereignty of the coastal State, Chile couldnot agree to article 73 in its present form. However, hisdelegation would accept the principle that such disputesshould be settled in accordance with the provisions ofthe United Nations Charter.17. He drew attention to the close relationship betweenthe articles under consideration by the Fourth Committeeand the subjects allocated to other committees forexample, the connexion between article 67 and thearticles dealing with the breadth of the territorial sea,since the continental shelf was regarded as beginningwhere the territorial sea ended. There was also arelationship between the work of the Third and FourthCommittees. It might well be that the success or failureof the Conference would depend on decisions taken inother committees.

18. The Conference was legislating in the true senseof the word, since it was trying to reach agreementwhere no agreement had existed previously. In the past,a state of war had been considered sufficient excuse tolimit and infringe such legal rights as the right ofneutrality or freedom of trade and navigation. If thatprinciple were accepted, it was far more justifiable thata peaceful organization such as the United Nationsshould endeavour to modify outworn formulae so as topave the way for the introduction of principles morein accord with scientific and technological progress andthe basic needs of the peoples it represented.

19. Mr. GABRIELLI (Italy) remarked that, while theconcept of sovereignty was inherent in the relationshipbetween a State and its territory and, by a logicalprocess of extension, between a State and its territorialsea, it did not apply to the relationship of a coastalState to its continental shelf. Territorial sovereignty wasan absolute and exclusive power which a State excercisedover its territory. It was inconceivable that power ofthat nature should be exercised over areas which didnot form part of the territorial domain.

20. Hence, it was incorrect to speak of the coastal Stateexercising sovereign rights over the continental shelf,as did article 68. The very expression " sovereignrights", implying as it did that sovereignty could bedivided into a number of rights, was questionable. Therecould be no sovereign rights where there was nosovereignty. It might be argued that in arriving at thepresent wording of article 68 the International LawCommission had been guided by the fact that, whenevernew rights were accorded to a State, the latter appearedas a sovereign personality in law. That was not, how-ever, necessarily the case; a coastal State might exercisecertain rights over the continental shelf, but not in itscapacity as a sovereign personality.

21. A definition of the rights of States over thecontinental shelf consistent with the nature of thoserights should be based on economic considerations.The object of such a definition was to make theutilization of certain resources of the continental shelflegitimate in international law. In other words, theright concerned was that of utilization, and thereforenot an absolute right, but one subject to both technicaland legal limitations.

Ninth meeting — 13 March 1958 17

22. The Italian delegation therefore believed that theposition of the coastal State with regard to thecontinental shelf was merely that of a holder of rightsof utilization. In that connexion, the formula proposedby the International Law Commission in its 1951 draft1

referring rather to powers of " control and jurisdiction "might be considered more complete and accurate. Butthe basis must be the idea of utilization, which was theprimary concept since it related to the actual, economicbenefits which the State could derive from the resourcesof the continental shelf. Control was a secondaryconcept, since it merely served to guarantee utilization,and to it might be added the concept of jurisdiction,which referred only to the coastal State's power toensure observance of its regulations as to exploitation.Hence, utilization, far from contradicting the conceptsof control and jurisdiction, would complement andclarify them.

23. The Italian delegation considered that the term"natural resources" mentioned in articles 67 and 68was to be taken as meaning inorganic natural resourcesonly. It held that the depth of 200 metres mentioned inarticle 67 should be sufficient for the purposes ofexploration and exploitation, but was prepared to supportreasonable modifications of that limit provided itremained a definite, fixed quantity. With regard to theexploitation of the subsoil of the continental shelf bymeans of tunnels or derectional drillings having theirstarting point on land, the rights of the coastal Stateshould not be subject to any depth limit, since suchexploitation could not result in any interference with theutilization of the high seas.

24. Commenting on article 72, he referred to thememorandum submitted by the secretariat of the UnitedNations Educational, Scientific and Cultural Organi-zation (UNESCO), which spoke of " shallow seasbetween islands and/or continents " which " incontestablyform parts of the continental shelf " and, in some cases,"form the raised margin of the continental shelf"(A/CONF.13/2, paragraph 11). The Italian delegationbelieved that the boundary of the continental shelfappertaining to States whose coasts were opposite toeach other and were in the proximity of islands whichhad to be regarded as forming part of the continentalshelf should be determined according to the definitionadopted by the International Committee on the Nomen-clature of Ocean Bottom Features to the effect that thecontinental shelf started at the low-water line(A/CONF.13/2, paragraph 6).

25. Mr. ROSENNE (Israel) disagreed with the viewthat there existed no customary international law whichcould provide the legal criteria for regulating theproblems of the continental shelf. Considering the rapiddevelopment of modern science and technology, timeshould not be given an exaggerated importance as acreative element in the development of customary law.Although the United States proclamation of 1945, thefirst to introduce the concept of the continental shelfinto international law, was of relatively recent date, the

1 Official Records of the General Assembly, Sixth Session,Supplement No. 9 (A/1858, paras. 76 to 78 and Annex.

matter could reasonably be regarded as fully governedby international law. The existence of a sufficient bodyof State practice, the widespread acquiescence in thatState practice, the large volume of authoritativeliterature and the work done by the International LawCommission and the General Assembly on the subjectall supported that view.

26. Hence the contention that the continental shelfwas res nullius or res communis, or that advanced bythe Federal Republic of Germany in its memorandum(A/CONF.13/C.4/L.1) to the effect that, according tothe international law in force, the coastal State had norights over the continental shelf beyond the outer limitof its territorial sea, were not adequate since theywere not borne out by State practice or by the teach-ings of the most highly qualified authors of the variousnations.

27. The Committee's discussions would be facilitatedif the three basic elements of existing law of thecontinental shelf were borne in mind. The first relatedto the extent of the area over which the coastal Statemight exercise its rights. The principal methods ofexploiting the mineral resources of the seabed andsubsoil were tunnelling from terra firma, drilling fromfixed or moving installations, which might be situatedin and involve some localized interference with the highseas, and dredging or scraping for sand and mineral-bearing mud on the seabed. Article 71 referredexclusively to drilling, and the definition given inarticle 67 also appeared to have been established witha view to the technical possibilities of drilling only. Sofar as tunnelling from terra firma was concerned, theInternational Law Commission in paragraph 11 of itscommentary on article 67 stated that it did not intendlimiting the exploitation of the subsoil and the high seasby that method. No such provision was, however,contained in the articles themselves. Mining to a depthof 10,000 feet was already a practical proposition onland and, by the same token, it must be consideredpossible under the sea. Article 67 was thereforeinsufficiently comprehensive and was not fully consistentwith articles 68, 69, 70 and 72, which, apart fromdetails of drafting, correctly stated the general rules oflaw governing the continental shelf. If a definition ofthe continental shelf was required, it should includeparagraph 11 of the International Law Commissionscommentary.

28. The second element related to the purpose for whichthe coastal State might exercise its rights. That was astrictly functional concept. While the delegation ofIsrael did not recommend a reversion to the term" mineral resources" previously employed by theInternational Law Commission, it feared that the term" natural resources " used in article 68 might lead toconfusion. In normal practice, the coastal State exercisedexclusive rights in the exploitation of sedentary fish onits continental shelf. That was an independent right underexisting law. However, since the Conference wasprincipally concerned with formulating rules of lawwhich could provide a satisfactory basis for theeconomic exploitation of the mineral resources of theseabed and subsoil, the question of sedentary fish mightbe left aside for the present, provided the rights ofcoastal States in that respect under existing international

18 Summary records

law were duly recognized. With regard to bottom fishwhose habitat was in the high seas, the question whethera real connexion existed between a coastal State andbottom fish frequenting a given area of the high seaswas highly technical and might more appropriately bereferred to the Third Committee or to a joint meetingof the Third and Fourth Committees. Lastly, pelagicfish had no connexion with the continental shelf andneed not be discussed by the Committee.

29. The third basic element of the existing law relatedto the status in law of the superjacent waters. Thesewere undoubtedly high seas. The Israel delegation fullyendorsed the principle stated in article 69, but felt thatadditional emphasis might be given to the status of thesuperjacent waters as high seas by including in thesection dealing with the continental shelf some referenceto the freedom of the high seas as set forth in article 27.Article 71 provided for certain localized limitationsto the freedom of the high seas with the twofoldobject of protecting installations necessary for theexploration and exploitation of the natural resourcesof the continental shelf and maintaining the safetyof navigation. In view of the importance of thatpoint, his delegation was ready to support any pro-posal aiming at further clarification of the provisions ofarticle 71.

30. Commenting on the question of disputes, heemphasized that the Conference was not called uponto legislate for concrete situations or, more particularly,for existing or potential disputes between States. It couldonly set forth some general propositions intended tofacilitate the pacific settlement of disputes by judicialor quasi-judicial means. An explanation to that effectmight be included in the report on the Committee'swork. With regard to article 73, there was force in theargument that more prominence might be given toarbitration, especially in the case of highly technicalmatters. The final form of the article might thereforehave to be reconsidered, as also might its place amongthe other articles, since the principle of judicial settle-ment could also apply to problems other than that ofthe continental shelf. His delegation did not accept theargument that the procedure of the International Courtof Justice was too slow for dealing with disputes relatingto the continental shelf or to the law of the sea ingeneral. Apart from the Court's power to indicateprovisional measures, there was no reason why it shouldnot dispose of its cases rapidly, given the necessaryco-operation on the part of litigants.

31. In conclusion, he wondered whether it would bepractical to include all the results of the Conference ina single convention. He doubted whether that was theintention of the International Law Commission asexpressed in paragraph 27 of the report covering thework of its eighth session. It might be preferable to useanother form of codification for the somewhatgeneralized rules envisaged for the continental shelf andto embody the substance of the agreement reachedthereon in a separate declaration. Such a course, whichwas not excluded by General Assembly reolutions899 (IX) or 1105 (XI) or by the International LawCommission, would avoid excessive rigidity in dealingwith a dynamic situation. That, however, was merely

offered as a suggestion and did not constitute a formalproposal.

32. Mr. DE LA PRADELLE (Monaco) said that thequestion of the continental shelf fell under article 15of the statute of the International Law Commission(General Assembly resolution 174 (II)), which spoke ofthe " preparation of draft conventions on subjects whichhave not yet been regulated by international law".With the exception of a few regional agreements, theconcept of the continental shelf was so far embodiedonly in unilateral declarations. It could not be claimedthat the rights of a coastal State over the seabed andsubsoil of the sea in the proximity of its coast werealready recognized, whether directly or implicitly, byinternational law.

33. The view that the continental shelf was subject toState sovereignty was not substantiated by the criteriaof territorial sovereignty or by the general principles ofinternational law; neither was it correct to argue thatState practice in that respect fulfilled the conditions ofa customary rule of international law.

34. The problem of the continental shelf formed partof the law of nations and was of vital interest to allcountries, whether or not they possessed a sea coast.The need for appropriate regulation of the problem wasdictated largely by economic considerations. Articles68 to 73 provided the basis for an adequate interimsolution, on condition that none of those articles, andmost particularly article 73, was detached from theothers by the operation of a reservation.

35. It should be borne in mind, however, that theInternational Law Commission did not exclude thepossibility of internationalization of the exploitation ofthe natural resources of the continental shelf at sometime in the future. Speaking in the Sixth Committee ofthe General Assembly during its eleventh session,Mr. Francois, General Rapporteur of the InternationalLaw Commission, had mentioned the fact that thepossible establishment of an international office of thesea had been considered by the Commission ;1 and areference to the same question was made in paragraph 9of the International Law Commission's commentary onarticle 68. Such an organization, set up in conformitywith Articles 55 and 59 of the United Nations Charterand comprising in its membership — apart fromrepresentatives of interested States — those ofUNESCO, the World Health Organization (WHO), theFood and Agriculture Organization (FAO) and otherspecialized agencies, would help governments in theadoption of decisions fully consistent with the law of thesea. His delegation warmly supported the suggestionthat such an organization should be created and wasprepared to submit a resolution to that effect which, ifadopted, could be annexed to the final act of theConference.


1 Official Records of the General Assembly, Eleventh Session,Sixth Commission, 500th meeting, para. 51.

Tenth meeting — 14 March 1958 19

TENTH MEETING

Friday, 14 March 1958, at 10.45 a.m.




STATEMENTS BY MR. SAMAD (PAKISTAN), MISS WHITEMAN(UNITED STATES OF AMERICA), MR. MOLODTSOV(UNION OF SOVIET SOCIALIST REPUBLICS), MR. CAR-MONA (VENEZUELA), MR. DOUIK (TUNISIA) AND MR.GROS (FRANCE)

1. Mr. SAMAD (Pakistan) observed that the question ofthe exploitation of the seabed and subsoil had beenreceiving increasing attention in recent years as a resultof technical developments, particularly with regard tosubmarine oil-drilling. The erection of derricks on theopen sea and the need to protect them inevitably led tosome curtailment of the freedom of navigation, andtherefore raised complex legal considerations.2. In his proclamation of 1945, the President of theUnited States had made it clear that the rigths ofthe United States of America over its continental shelfin no way affected the principle of the freedom of thehigh seas. Subsequent national proclamations on thesubject, including those issued by Pakistan andAustralia, embodied similar reservations. The Pakistanidelegation therefore welcomed the provisions of article69. Indeed, it was in broad general agreement with allthe articles relating to the continental shelf, although itshared the misgivings about articles 67, 71 and 72expressed, among others, by the representatives ofFrance (3rd meeting), Norway and the United Kingdom(4th meeting).

3. The effect of the inclusion in article 67 of thecriterion of exploitability of the natural resources of themaritime areas concerned was to abolish any definitelimit to the continental shelf, replacing it by the possi-bility of limitless extension subject only to technicalconsiderations. The difficulty that arose in cases wherethe same continental shelf was adjacent to the territoriesof States whose coasts were opposite to each other orwas adjacent to the territories of adjacent States wasadmittedly covered by paragraphs 1 and 2 of article 72.Nevertheless, the absence of a fixed limit to the con-tinental shelf was likely to lead to disagreement betweenStates. While it might be argued that the criterion ofdepth alone was imperfect in that it placed States withsteeply shelving coasts at some disadvantage, thePakistani delegation considered that, in the interests ofproviding for a specific and objective delimitation, thesecond part of article 67, relating to the criterion ofexploitability, should be deleted.

4. With regard to article 68, the view expressed by theInternational Law Commission in paragraph 2 of itscommentary thereon — to the effect that " the rights ofthe coastal State are exclusive in the sense that, if itdoes not exploit the continental shelf, it is only with itsconsent that anyone else may do so " — was a sound

one, subject, of course, to the limitation imposed byarticle 70. His delegation could not support the thesisin the memorandum submitted by the Federal Republicof Germany (A/CONF.13/C.4/L.1), because the ideasadvocated therein were entirely foreign to internationalpractice and to the generally accepted concept of thecontinental shelf.5. He accepted the International Law Commission'sviews on the meaning of the term " natural resources ",referred to in article 68.6. It would be preferable if the width of safety zoneswere clearly specified in article 71 ; moreover, the term" due notice " in paragraph 4 thereof was ambiguous,and should be more clearly defined.7. In discussing article 72, paragraph 2, during thesecond stage of its work, the Committee should considerwhether the measurement necessary for the deter-mination of boundary lines should be made from thecoast itself or from an imaginary straight line drawnalong the coast, ignoring any indentations in thecoastline.8. With regard to article 73, it was common knowledgethat certain States did not accept the compulsoryjurisdiction of the International Court of Justice; inparticular, the International Court was not the acceptedforum for the adjudication of disputes between theCommonwealth countries. Therefore, unless such coun-tries agreed on another method of peaceful settlement,the only solution open to them would be that providedfor in Article 33 of the Charter of the United Nations.The Committee might consider including in article 73a specific provision somewhat on the lines of article 57.

9. Miss WHITEMAN (United States of America)emphasized that in his proclamation of 28 September1945 the President of the United States had included anexplicit statement to the effect that the character as highseas of the waters above the continental shelf was in noway affected by the proclamation. Similar provisions hadalso been included in her country's subsequent domesticlegislation on the continental shelf.10. Certain national proclamations issued on the samesubject since 1945 differed from the United Statesproclamation in the important respect that they claimednot only rights over the resources of the continentalshelf, but also sovereignty over the superjacent waters.The United States of America upheld the view that thehigh seas could not be appropriated by the coastal Statein connexion with a claim to the continental shelf ; suchunilateral action was contrary to international law,which established the high seas as the common propertyof all countries. Her country's claim to its continentalshelf was based on the view that control of the develop-ment of the continental shelf should reside in the coastalState.11. Commenting on the articles before the Fourth Com-mittee, she strongly supported, in principle, the generaltype of regime set forth in those articles. She acceptedthe depth of 200 metres, with a precise equivalentindicated in fathoms, as an appropriate definition of thelimit of the continental shelf, but intimated doubts aboutthe wisdom of adopting the additional criterion ofpossible exploitation, particularly in conjunction witharticle 72, paragraph 2, dealing with the boundariesbetween the continental shelves of adjacent States.

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12. With regard to article 68, the United States procla-mation of 1945 and subsequent United States domesticlegislation spoke of " jurisdiction and control" ratherthan of " sovereign rights ". In order to make it clearthat the waters above the continental shelf were notaffected, the United States delegation would like to seethe word " sovereign " deleted, while agreeing to theretention of the word " rights ".13. She strongly endorsed the provisions of article 69.With regard to article 72, paragraph 2, she pointed outthat, as at present worded, it might create seriousproblems, and therefore required careful examination.She drew attention to a comparable provision inarticle 14.14. The United States delegation would favour thethe inclusion of article 73 in any convention on thesubject of the continental shelf.15. So far as the definition of the term "naturalresources " was concerned, it was obvious that it includedmineral resources, since the minerals of the continentalshelf had the same origins as those of the land domain.Living resources, on the other hand, were essentiallyproducts of the waters, and might well be regarded asappertaining to the high seas. The most satisfactorycriterion for defining those marine organisms whichmight, on the basis of long established custom and usage,be recognized as natural resources of the continentalshelf appeared to be that of attachment to the seabedduring the harvestable stages of life. Most other criteriawould present extremely difficult problems of definition,might impair the principle of the freedom of the highseas and might well impede the proper development andconservation of the resources concerned. Referring inthat connexion to the Mexican representative's statementat the 9th meeting, she would explain that the Sub-merged Lands Act of the United States of America,passed on 22 May 1953, related solely to her country'sterritorial sea and to the land beneath it; the definitionof natural resources in section 2 (e) of the Act relatedboth to the land and the water and bore no relation tothe outer continental shelf.

16. In conclusion, she remarked that much of the FourthCommittee's work formed part of the " progressivedevelopment of international law " envisaged in Article13 of the Charter of the United Nations and in Article 15of the Statute of the International Law Commission(General Assembly resolution 174 (II)). At the sametime, due consideration should be given to existinginternational law relating to the problem of the con-tinental shelf, such as that on the freedom of the highseas.

17. Mr. MOLODTSOV (Union of Soviet SocialistRepublics) said that the Fourth Committee's work wouldbe successful if it was conducted in a desire to achievemutual understanding and if due consideration was givenboth to the legitimate interests of individual States andto the more general interests of the strengthening ofpeace and international collaboration. The InternationalLaw Commission's articles on the continental shelf werelargely satisfactory and provided a solid basis for theFourth Committee's deliberations.18. In recent years, a number of States had issuedproclamations claiming certain rights over the conti-nental shelf. For coastal States the utilization of the

resources of the continental shelf represented a sourceof wealth likely to increase in importance as science andtechnology advanced from year to year. The resourcesof the seabed and subsoil of the continental shelf con-stituted, in the main, a continuation, or a part, of theland resources. The coastal States were thereforejustified in claiming the right to explore, exploit andprotect the natural resources of the continental shelf.19. The proposals of certain delegations which dis-regarded the interests of the coastal State with regard tothe continental shelf and proposed to establish for allStates the right to exploit the resources of the continentalshelf, considering that any other regime would conflictwith the freedom of the high seas, were not acceptable.While the problem of the continental shelf was certainlyconnected with the principle of the freedom of the highseas, it was also an independent problem withcharacteristic features of its own. For example, thecontinental shelf — unlike the seas and oceans — wasnot a means of communication between nations.Moreover, the exploitation of the natural resources ofthe continental shelf was generally connected with theerection of permanent installations which necessarilyentailed the exercise of a State's authority, whereas thesame could not be said of the freedom of navigation andfishing.

20. There were also other features of the problem.Adoption of the proposals for establishing the freeexploitation of the resources of the continental shelf andfailure to take into account all those features informulating the rules for the juridical regime of the shelfwould lead to an intensified struggle for possession ofthe submarine areas of the high seas, as a result of whichthe wealth of the continental shelf might pass into thehands of undertakings of the large States to the detrimentof the small and medium-sized countries.21. The necessary recognition of the coastal State'srights to explore and exploit the natural resources of thecontinental shelf should not, however, result in theabolition of the principle of the freedom of the highseas, which was one of the main foundations of peacefulrelations between countries and was in the interests ofall nations.22. The International Law Commission, in regardingthe sovereign rights of the coastal State in the explorationand exploitation of the resources of the continental shelfand in formulating provisions embodying the principleof the freedom of the high seas, had found a completelyequitable solution.23. The inclusion of the concept of sovereign rights inarticle 68 was entirely correct from the standpoint ofinternational practice and international law, unlike theterm " jurisdiction and control", which was bothnarrower and more ambiguous. Similarly, the definitionof the continental shelf provided in article 67 was, ingeneral, satisfactory.24. With regard to article 73, he remarked that thesettlement of disputes between States formed part ofprocedural law rather than of substantive law. Ittherefore fell outside the tasks properly assigned to theFourth Committee, particularly as the question of thesettlement of disputes related not only to the articles onthe continental shelf but also to other articles on the lawof the sea. The subject should be considered apart but

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for the time being, there was no need for the Committeeto discuss it, since it was covered by the United NationsCharter, by the Statute of the International Court ofJustice and by special international conventions. Hisdelegation supported the proposals of certain otherdelegations that article 73 should be replaced by aprovision to the effect that disputes between States overthe continental shelf should be settled by peaceful meansin accordance with the Charter of the United Nations.25. Mr. CARMONA (Venezuela) said that the Inter-national Law Commission's deliberations had shown thatthe concept of the continental shelf was compatible withthe principle of the freedom of the high seas providedthe rights and duties of States in those waters wereclearly defined, and the draft articles provided safeguardsfor the freedom of navigation and fishing and for theconservation of the living resources of the sea.26. Venezuela had previously defined its position at theConference of Ciudad Trujillo and at the eleventh sessionof the General Assembly of the United Nations. It wasin general agreement with the articles drafted bythe International Law Commission. The concept of thecontinental shelf was based on the evidence of thesciences concerned, which had established that it was thecontinuation of the mainland. His delegation acceptedthat idea, and accordingly considered that the mineralresources occurring in the continental shelf belonged tothe coastal State in the same way as did the resourcesof the mainland ; it therefore accepted the definition inarticle 67.27. With reference to article 68, he believed that theInternational Law Commisson had not sufficientlyconsidered the principal purpose of the concept of thecontinental shelf, which, by giving exclusive rights overthe submarine areas of its territory to the coastal State,eliminated dangerous competition between States forthe possession of such areas. To limit the rights of thecoastal State to the exploration and exploitation of thenatural resources of the seabed and subsoil was contraryto the spirit of that concept. Venezuelan legislationaccepted no such limitation, since it was based on theview that the rights in question were based on sovereigntyand therefore absolute. To accept such limitation wouldimply that any coastal State which was unable to exploitfully the resources of its continental shelf would beequally unable to claim sovereign rights over it and thatany other State could exercise those rights merely byundertaking exploitation. That would amount toacceptance of the principle of occupation alreadyrejected by the International Law Commission. Inter-national exploitation of the continental shelf would notbe a practical possibility until the day of universalbrotherhood arrived, and in paragraph (3) of theintroductory commentary to the draft articles on thecontinental shelf it had been recognized by the Inter-national Law Commission as unrealistic. Venezuelaaccordingly found article 68 unacceptable on the groundsthat it was too ambiguous and unrealistic to form a basisfor international law. The admitted identity of orcontiguity between the mainland and the submergedareas was sufficient to set up the sovereignty of thecoastal State. Article 68 should recognize thatsovereignty in clear terms, and thus forestall the disputesthat were always likely to arise from the interpretationof restrictive provisions.

28. His delegation was prepared to recognize the rightsof States to lay cables on the continental shelf, butconsidered that prior consultation with the coastal Stateand its consent were essential.29. With regard to article 72, Venezuela did notconsider that it was possible to provide a general rule tocover all cases. It could not accept the proposal inparagraph 1 that, in cases where the same continentalshelf was adjacent to the territories of two or more Stateswhose coasts are opposite to each other, its boundaryshould be the median line, since the continental shelfcould not be divided down the middle. Bilateralagreements between the States concerned could takeaccount of the special conditions obtaining in any givencase and would provide a more practical solution.

30. His Government could not accept article 73 as itstood. He realized that States would wish to know whatprocedure was to be followed in case of disagreementbefore they committed themselves to decisions oncertain subjects. However, no final agreement could bereached without preliminary agreement between theStates concerned. He believed that it was the generalview in Latin America that it would be better to providefor a more graduated procedure, passing through stagesof enquiry and mediation, and only in the last resortaccepting the compulsory jurisdiction of an internationalbody.

31. Mr. DOUIK (Tunisia), although welcoming theInternational Law Commission's recognition of thegeological reality of the continental shelf, regretted thatthe definition in article 67 was so vague and ambiguous.In one sense, the inner limit of the continental shelfwas not hard to define, since it coincided with the outerlimit of the territorial sea, a problem that was beingdiscussed by the First Committee. The definition of theouter limit of the continental shelf, however, was opento interpretation and might well lead to disputes. In itsdefinition, the International Law Commission had madeuse of two criteria, the mathematical notion of the 200-metre isobath and the more subjective notion of possibleexploitation, the latter of which must depend on thetechnical capacity of the coastal State. Those two criteriawere to some extent contradictory. A study of the twopreparatory documents submitted by the Food andAgriculture Organization (FAO) (A/CONF. 13/12 andA/CONF.13/13) and the preparatory document on theexploitation of the mineral resources of the continentalshelf (A/CONF. 13/25) showed that although there wasperhaps no theoretical limit to technical capacity toexploit the resources of the continental shelf,exploitation was in fact limited by various factors, suchas the maximum depth at which favourable conditionsobtained for the living resources of the sea. In the sameway, there was a depth beyond which the cost oferecting installations and operating them would makethe exploitation of mineral resources unprofitable. Itappeared that the best criterion for defining thecontinental shelf was the 200-metre isobath, which wasin accordance both with the geological configuration ofthe continental shelf and with the availability of itsresources. The criterion of technical capacity to exploitthe resources of the continental shelf had certain inherentdangers, and he would speak further on that point ata later stage.

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32. According to article 68, the coastal State exercisedsovereign rights for the purpose of exploring and ex-ploiting the natural resources of the continental shelf.The International Law Commission had thought itnecessary in article 69 to safeguard the freedom of thesuperjacent waters and the air space above them. How-ever, the sovereign rights of the coastal State over thecontinental shelf were not in conflict with the principleof the freedom of the superjacent waters or of the airspace above them, since, according to the definition inarticle 67, the continental shelf included the seabed andsubsoil of submarine areas alone. His delegation didnot believe that any misunderstanding was possible onthat point. It fully supported the freedom of the highseas in the interests of the international community, andmore especially in the interests of scientific research andthe conservation of the living resources of the sea. Ifarticle 68 were made more specific by the addition ofsome such phrase as " safeguarding the freedom of thesuperjacent waters", he felt that article 69 wouldbecome superfluous.33. He agreed with the provisions of article 70, but feltthat it would be better to find some more precise formfor the notion of " reasonable measures ", which wouldtend to give rise to disputes.34. His delegation would prefer to see a specificmaximum limit for safety zones stipulated in the text ofarticle 71.35. With regard to article 72, he considered that thedelimitation of the continental shelf between Statesadjacent to or opposite each other should take accountof the geographical configuration of the region, and thatconsiderable flexibility would have to be used in applyingthat article.

36. Mr. GROS (France) said that the Fourth Committeewas fortunate in two respects : first, that it had onlyseven articles to consider ; and secondly, that it had theopportunity of legislating in a field not previouslyregulated by international law. To legislate in inter-national law meant reaching agreement between govern-ments, since there was no international parliament otherthan that provided by diplomatic conferences. Never-theless, it required the same virtues of self-restraint andfairness in resolving legitimate interests as did legislatingin any democratic State. It was in that spirit that heproposed to examine the general problems presented bythe seven articles on the continental shelf.37. The first question was that of the recognition of theconcept of the continental shelf. The best way ofpersuading those who were reluctant to accept thatconcept was to show them what the legal regulation ofthe continental shelf would mean in practical terms. Ifthe Committee could agree on the rules of a convention,he thought that it might have no difficulty in developingfrom them a definition of the principle of law to setat the head of the convention. If that view were accepted,he suggested that the following problems would have tobe solved. First, the question of whether all the resourcesof the continental shelf were to be exploited, or merelythose of its seabed and subsoil to the exclusion of thesuperjacent waters. Secondly, who was to enjoy the rightsof exploitation; the coastal State, the internationalcommunity or the first comer? Thirdly, what were thenature and extent of the rights necessary for exploitation?

If that issue were first considered, the knotty problemof choosing between full sovereignty and restricted rightsmight solve itself. Fourthly, what adjustment might berequired to existing rules of international law in relationto neighbouring legal situations which might be affectedby an international regime for the continental shelf?Such adjustment lay at the heart of the matter inin legislating in any domain, and would involve weighingthe different interests of international navigation on thehigh seas and fishing in traditional waters.38. It would be more fruitful to try to reach agreementon what should be the basis of a convention on thecontinental shelf, rather than to engage in repeatedclashes of principle over each separate article. Theoutcome of such an approach might well be that theCommittee, instead of finding itself divided into groupsby mere verbal differences, might suddenly find itselfable to co-operate in a joint creative achievement.


ELEVENTH MEETING

Monday, 17 March 1958, at 10.45 a.m.




STATEMENTS BY MR. ZAORSKI (POLAND), MR. BELINSKY(BULGARIA), MR. LEE (REPUBLIC OF KOREA), MR.BUU-KINH (REPUBLIC OF VIET-NAM), MR. LIMA (ELSALVADOR), MR. GARCIA AMADOR (CUBA ) AND MR.OSMAN (INDONESIA)

1. Mr. ZAORSKI (Poland) said that the articles on thecontinental shelf, drafted by the International LawCommission, provided a satisfactory basis for the FourthCommittee's work. The fact that they had been includedin part II of the draft, under the general heading of" High Seas ", implied that the regime proposed for thecontinental shelf formed part of the general regime ofthe high seas, and hence could not run counter to theprinciple of the freedom of the high seas ; accordingly,the coastal State, in exercising its rights over thecontinental shelf, could not infringe that principle.2. Viewed from that angle, the wording of article 68was too broad, since it did not clearly specify that thesovereign rights of the coastal State over the continentalshelf did not extend to bottom fish or to other marineorganisms, such as Crustacea, which had no permanentassociation with the seabed and moved about freelyduring certain periods of their lives. Whereas the positionconcerning bottom fish was defined in paragraph 3 ofthe International Law Commission's commentary onarticle 68, that concerning Crustacea was left open. Theproblem of the physical and biological association withthe seabed of living marine species was a highly complexone, as was clear from the document on that subjectsubmitted by the secretariat of the Food and Agri-culture Organization (FAO) (A/CONF.13/13). For