Continental Shelf

Peter-Tobias Stoll

Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: September 2008

Subject(s):
Continental shelf — Sovereignty — Boundaries — UNCLOS (UN Convention on the Law of the Sea) —
Maritime boundaries — Islands and artificial islands — Marine environment, protection
Published under the auspices of the Max Planck Institute for Comparative Public Law and International
Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).

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 A. Introduction
1 In legal terms, the continental shelf signifies a certain part of the seabed and subsoil
beyond the → territorial sea subject to a special regime. As the result of a long development
in → customary international law and treaty law, which roughly started right after World
War II and matured with the entry into force of the United Nations Convention on the Law
of the Sea (‘UN Convention on the Law of the Sea’) in 1994, coastal States enjoy sovereign
rights, which relate to the resources situated in this part of the marine space (see also
→ Natural Resources, Permanent Sovereignty over). These rights and the status of the
continental shelf are distinct from the legal regime governing the water column. This legal
regime has borrowed the name and some of the concepts of the oceanographic notion of the
continental shelf but also deviates from that notion in several respects. The determination
of the outer limits of the continental shelf, its delimitation in case of neighbouring or
adjacent coasts, and the rights and authorities of the coastal State vis-a-vis the rights and
interests of third States or the → international community, are subject to complex rules.

B. Evolution of the Concept and Current Legal Basis

2 Due to technological advances and need, the exploration and exploitation of resources on
and below the seabed became increasingly relevant in the second half of the 20th century.
The many legal issues raised by the use of the seabed and its resources were addressed by
a proclamation of President Truman in 1945, which states that ‘the Government of the
United States regards the natural resources of the subsoil and seabed of the continental
shelf beneath the → high seas, but contiguous to the coasts of the United States as
appertaining to the United States, subject to its jurisdiction and control’ (‘Policy of the
United States with respect to the Natural Resources of the Subsoil and Seabed of the
Continental Shelf’ [28 September 1945] (1945) 13 DeptStBull 485). Thus, as a justification
of the claim raised, the preamble of the proclamation points to an idea of contiguity and
reasonableness. The United States proclamation provoked a number of other States to raise
similar claims, which, however, were often more expansive, sometimes covered biological
resources, and even claimed rights over the superjacent waters.

3 The First UN Conference on the Law of the Sea (‘UNCLOS I’; → Conferences on the Law
of the Sea) addressed this development and negotiated and adopted the Convention on the
Continental Shelf in 1958. The Convention on the Continental Shelf, which entered into
force in 1964 and today has more than 50 States Parties, in Art. 2 (1) acknowledges that
‘the coastal State exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources’. The Convention on the Continental Shelf
clarifies the rights of coastal States as well as third States. Furthermore it defines the outer
limits of the continental shelf. According to Art. 1 Convention on the Continental Shelf, the
continental shelf is understood to cover ‘the seabed and subsoil of the submarine areas
adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or,
beyond that limit, to where the depth of the superjacent waters admits of the exploitation of
the natural resources of the said areas’. By its reference to water depth and the feasibility
of exploitation, this definition deviates considerably from the contiguity approach as
envisaged by the 1945 proclamation of President Truman.

4 In turn, the → International Court of Justice (ICJ) relied on the contiguity approach in its
1969 judgment in the → North Sea Continental Shelf Cases. It stated that

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 the rights of the coastal State in respect of the area of continental shelf that
constitutes a natural prolongation of its land territory into and under the sea exist
ipso facto and ab initio, by virtue of its sovereignty over the land, and as an
extension of it in an exercise of sovereign rights for the purpose of exploring the
seabed and exploiting its natural resources. In short, there is here an inherent right.
(North Sea Continental Shelf Cases [Federal Republic of Germany/Denmark;
Federal Republic of Germany/Netherlands] [Judgment] 22]

5 The legal regime of the continental shelf was further developed by the Third UN
Conference of the Law of the Sea (‘UNCLOS III’; 1973–82). The resulting UN Convention on
the Law of the Sea includes an elaborate regime of the continental shelf in Part VI. The
formation of that part of the UN Convention on the Law of the Sea was importantly
influenced by two other developments, namely the emergence of the → exclusive economic
zone (‘EEZ’) and the regime for the deep seabed.

6 The EEZ has been one of the core issues of UNCLOS III and today is ruled upon by Part V
(Arts 55–75) UN Convention on the Law of the Sea. It relates to the water column and its
resources beyond the territorial sea up to 200nm from the → baselines. The legal concept of
the EEZ parallels that of the continental shelf in attributing certain limited rights to coastal
States beyond the reach of the territorial sea. For some time, it has even been discussed to
integrate the continental shelf into the EEZ. Still today, the textual reference to the EEZ
regulated in Art. 60 UN Convention on the Law of the Sea in Art. 80 UN Convention on the
Law of the Sea, which concerns the continental shelf, witnesses the close relation between
the two regimes. However, the view prevailed that the rights over the continental shelf are
at least in part based on continuity and thus merit a distinct regime. This distinct legal base
is reflected in Art. 77 (3) UN Convention on the Law of the Sea, which clarifies that coastal
States’ rights over the continental shelf do exist ipso facto whereas the EEZ requires to be
claimed by the coastal State in question.

7 The second important development concerns the legal regime of the deep sea bed
(→ International Seabed Area). In a long process, which originated in the UN General
Assembly’s (‘UNGA’) Declaration of Principles Governing the Sea-Bed and the Ocean Floor,
and the Subsoil thereof, beyond the Limits of National Jurisdiction of 1970 (UNGA
Resolution 2749 [XXV] [17 December 1970] GAOR 25th Session Supp 28, 24) and took
shape with Part XI UN Convention on the Law of the Sea and the Agreement relating to the
Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10
December 1982 ([done 29 July 1994, entered into force 28 July 1996)] 1836 UNTS 41), the
legal status of the deep seabed shifted from a res nullius to a res communis concept. Article
131 UN Convention on the Law of the Sea declares the area a → common heritage of
mankind. In view of these changes, the question of the outer limits of the continental shelf
has to be seen in a different perspective. While originally these limits were seen to
constitute the maximum extent of coastal State claims to an area which was considered
terra nullius, the limits now delineate claims to resources of coastal States on one hand and
those of the international community on the other hand.

8 In 1985, three years after the adoption of the UN Convention on the Law of the Sea—the
ICJ addressed the relationship between the EEZ and the continental shelf in the
→ Continental Shelf Case (Libyan Arab Jamahiriya/Malta). The court highlighted that ‘the
two institutions—continental shelf and exclusive economic zone—are linked together in
modern law’ (Continental Shelf Case [Libyan Arab Jamahiriya/Malta] [Judgment] 33). The
court furthermore explained that ‘this does not mean that the concept of the continental
shelf has been absorbed by that of the exclusive economic zone’ (ibid). However, according

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 to the court, ‘greater importance must be attributed to elements, such as distance from the
coast, which are common to both concepts’ (ibid).

9 Today, the legal rules on the continental shelf still flow from different sources. For States
Parties of the UN Convention on the Law of the Sea, Part VI is relevant, which, according to
Art. 311 (1) UN Convention on the Law of the Sea, prevails over the 1958 Convention on the
Continental Shelf. The latter convention, however, is still relevant for those States Parties
which are not parties to the UN Convention on the Law of the Sea. As far as the few States
are concerned which are not part of any of those agreements, customary law plays an
important role. Its contents, however, are difficult to ascertain.

C. The Delimitation of the Continental Shelf

10 A major legal issue of the continental shelf concerns its proper limit. While it has always
been clear that in landward direction the continental shelf is attached to the territorial sea
and the seabed, its outer limits as well as the delimitation regarding neighbouring and
adjacent coasts are subject to complex rules.

1. The Outer Limits

11 The question of the outer limits of the continental shelf is closely related to the legal
basis of coastal State claims over the continental shelf. Basically two concepts have been
relevant in this regard. On the one hand, the limits of the shelf and coastal States’ rights
may be based on the idea of contiguity in that sense that the continental shelf can be
understood as regards a coastal State as the ‘natural prolongation of its land territory to the
outer end of the continental margin’ (Art. 76 (1) UN Convention on the Law of the Sea). In
this view, the outer limit of the continental shelf is defined by a geological criterion: the
outer edge of the continental margin. According to Art. 76 (3) UN Convention on the Law of
the Sea that margin ‘comprises the submerged prolongation of the land mass of the coastal
State, and consists of the seabed and subsoil of the shelf, the slope and the rise’. Rights of
States in this perspective can be based on territorial → sovereignty.

12 On the other hand, the outer limit of the continental shelf can be determined by the
distance from the baselines. The limits of the shelf in this case would be rather clear-cut.
They would appear to be very much the result of a process of attributing certain marine
areas to coastal States. Very clearly, the continental shelf in this view would be considered a
concept to parallel that of the EEZ and the result would be a coherent scheme of limited
coastal States’ rights over the seabed, the subsoil, and the water column above it, whereas
the concept of continuity results in a clear-cut difference between the legal regimes on the
seabed and the subsoil on the one hand, and the water column on the other. The approach
based on distance would bring the two concepts in line at least from the point of view of
their geographical coverage.

(a) Contiguity or Distance? Different Concepts

13 The development of the legal notion of the continental shelf reflects these different
approaches and has been importantly influenced by an increase in scientific knowledge
about the geological situation in different parts of the world, as well as an increase in the
knowledge about potential resources and the development of technologies for their
exploration and exploitation. The 1945 proclamation by President Truman and its emphasis
on continuity seems to be very much in line with the contiguity approach adopted by the ICJ
in the → North Sea Continental Shelf Cases. However, it should not be overlooked, that
during the same period of time a number of claims to the continental shelf were made with
particular reference to a certain distance, in most cases 200nm from the baselines. Even

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 more important, several of those claims went far beyond the geographical and geological
realities, as the continental margin was often situated much closer to the coast.

(b) The Approach of the UN Convention on the Law of the Sea

14 Part VI UN Convention on the Law of the Sea combines the two approaches. Article 76
(1) UN Convention on the Law of the Sea points to the idea of contiguity by referring to ‘the
natural prolongation…to the outer edge of the continental margin’. However, alternatively,
the provision attributes the submarine areas up to a distance of 200nm to the coastal State,
where the outer edge of the continental margin does not extend up to that distance. As a
result, more than 30% of the total seabed areas of the world have been attributed to coastal
States, including considerable parts of the sea floor situated beyond the continental
margins. The North Sea Continental Shelf Cases and the Continental Shelf Case (Libyan
Arab Jamahiriya/Malta) indicate, and most writers agree, that today coastal States may
claim an area of 200nm beyond the baselines.

15 While this development clearly reflects the distance approach, the UN Convention on
the Law of the Sea also takes into consideration the contiguity approach by envisaging a
more extended continental shelf in cases where the outer edge of the continental margin is
situated outside a distance of 200nm from the baselines (Art. 76 (1) and Art. 76 (3) UN
Convention on the Law of the Sea). Such continental shelf, which exceeds the 200nm
distance, is often called a ‘broad continental shelf’. The rules concerning this ‘broad
continental shelf’ address its possible extent by determining the continental margin (Art. 76
(4) UN Convention on the Law of the Sea) and furthermore set up a general outer limit (Art.
76 (5) UN Convention on the Law of the Sea). In both cases, different methodologies are
offered.

(c) The Continental Margin, Art. 76 (4) UN Convention on the Law of the Sea
16 As regards the extent of the continental margin and thus the continental shelf, Art. 76
(4) UN Convention on the Law of the Sea contains a complex ruling. It basically addresses
the difficult determination of the limits of the continental rise by determining the distance
from the foot of the continental slope. The latter is defined by Art. 76 (4) (b) UN Convention
on the Law of the Sea, which states that ‘in the absence of evidence to the contrary, the foot
of the continental slope shall be determined as the point of maximum change in the
gradient at its base’. On that basis, Art. 76 (4) UN Convention on the Law of the Sea
envisages two different methods to determine the continental margin. The first one—known
as the ‘Irish Formula’—refers to the thickness of sedimentary rocks and envisages a line to
be drawn, where ‘the thickness of sedimentary rocks is at least 1 per cent of the shortest
distance from such point to the foot of the continental slope’ (Art. 76 (4) (a) (i) UN
Convention on the Law of the Sea). The second one—the so-called ‘Hedberg Formula’—
relates to distance and stipulates that a line be drawn 60 nm from the foot of the slope.

(d) The Ultimate Limits, Art. 76 (5) UN Convention on the Law of the Sea
17 Article 76 (5) UN Convention on the Law of the Sea sets up a general outer limit. It
alternatively refers to a distance from the coast or water depth. According to this provision,
a broad continental shelf shall ‘either not exceed 350 nautical miles from the baselines…or
shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting
the depth of 2,500 metres’. The limitation has to be done by drawing a line connecting
points not more than 60nm apart (Art. 76 (7) UN Convention on the Law of the Sea).

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 18 The aforementioned provisions on the determination of the continental margin and the
outer limits by means of the different methodologies are not only driven by hydrographic
requirements but also reflect an interest in doing justice in view of different geological
settings. The ‘Irish Formula’ can be considered to particularly address conditions of a broad
continental rise, as is the case with the Atlantic and Indian Ocean and the Arctic Ocean. The
‘Hedberg Formula’ particularly responds to conditions of a precipitous continental rise, as
they may be found at the coasts of Latin America.

(e) The 1982 Statement of Understanding: Special Rules for the Bay of Bengal
19 The idea of justice is particularly evident in the case of the Statement of Understanding
Concerning a Specific Method to be used in Establishing the Outer Edge of the Continental
Margin (‘Statement of Understanding’), which envisages yet another method of
establishment of the limits for the particular case of the Bay of Bengal (Final Act of the
Third United Nations Conference on the Law of the Sea Resolution IV Annex II [10
December 1982] UN Doc A/CONF.62/121 183–84; see also → Bays and Gulfs). This
statement has been adopted by UNCLOS III on occasion of the adoption of the UN
Convention on the Law of the Sea. It envisages a method of delimitation whereby the outer
edge of the continental margin is defined by points where the ‘thickness of the sedimentary
rocks is not less than 1 kilometre’ (ibid 184). According to the statement, this method shall
be applied in case, where ‘(1) the average distance at which the 200 metre isobar occurs is
not more than 20 nautical miles’ (ibid 183) and ‘the greater proportion of the sedimentary
rock of the continental margin lies beneath the rise’ (ibid 184).

(f) The Commission on the Limits of the Continental Shelf

20 In view of the many difficulties and uncertainties which might arise at this point, the
UN Convention on the Law of the Sea establishes a complex mechanism to determine the
limits of the shelf. While acknowledging that it is on the coastal State to establish those
limits, the UN Convention on the Law of the Sea at the same time sets up a Commission on
the Limits of the Continental Shelf whose procedure has an important role to play in the
establishment of the limits (see Annex II to the UN Convention on the Law of the Sea;
→ Continental Shelf, Commission on the Limits of the). According to Art. 76 (7) UN
Convention on the Law of the Sea, it is first of all on the coastal State to delineate the outer
limits of its continental shelf. According to the provision, this has been done by establishing
straight lines not exceeding 60nm in length connecting fixed points, defined by co-ordinates
of latitude and longitude. This information has to be submitted to the Commission on the
Limits of the Continental Shelf. The commission, which is composed of scientific experts
serving in their personal capacity, shall make recommendations on the matter.

21 According to Art. 76 (8) UN Convention on the Law of the Sea, the establishment of
limits of the continental shelf by the coastal State shall only be final and binding where it is
based on the recommendations issued by the Commission on the Limits of the Continental
Shelf. This wording is rather unfortunate. It certainly clarifies that the establishment of
outer limits in contradiction to or in the absence of a recommendation of the Commission on
the Limits of the Continental Shelf lacks binding force and cannot be considered final in
character. However, Art. 76 (8) UN Convention on the Law of the Sea is of little help in
preventing States from making declarations or taking other measures for political reasons
in spite of their poor legal effect. The ambiguous wording reflects an unresolved conceptual
divergency. On the one hand, it has been maintained on the basis of the contiguity
approach, that it is a coastal State’s right to claim, declare, and establish a continental shelf
even if it is a ‘broad’ one. On the other hand, there has been a strong tendency to entrust an

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 international institution—the Commission on the Limits of the Continental Shelf—with the
determination of the limits of such shelf.

2. Neighbouring or Adjacent Coasts

22 Aside from determining the outer limits, a delimitation might be necessary in view of
the continental shelf between States with opposite or adjacent coasts. According to Art. 76
(10) UN Convention on the Law of the Sea, the delimitation of the outer limits shall be
without prejudice to the delimitation of the continental shelf between such States. The
latter question is specifically dealt with in Art. 83 (1) UN Convention on the Law of the Sea,
which envisages that such delimitation shall be effected by agreement. Furthermore, States
concerned shall refer to the dispute settlement procedures as envisaged in Part XV UN
Convention on the Law of the Sea where needed. Indeed, the ICJ and arbitral tribunals have
decided on a number of such cases and have developed criteria and rules in this regard (see
also → Maritime Delimitation Cases before International Courts and Tribunals).

3. Islands
23 In general, → islands have their own continental shelf. This has been already explicitly
stated in Art. 1 (b) Convention of the Continental Shelf and it is clarified in more general
terms by Art. 121 (2) UN Convention on the Law of the Sea. Article 121 (3) UN Convention
on the Law of the Sea excludes ‘rocks which cannot sustain human habitation or economic
life of their own’ as it was considered inappropriate to assign potentially large shelf claims
in these cases. Furthermore, islands may cause a number of difficulties in view of the
delimitation of marine boundaries, including the continental shelf. The proper continental
shelf of an island may importantly enlarge the overall continental shelf of the respective
coastal State. From the point of view of a State with an adjacent coast, this enlarging effect
might be considered inequitable in view of the frequently small size of such island. In the
Delimitation of the Continental Shelf between the United Kingdom of Great Britain and
Northern Ireland, and the French Republic Case ([UK v France] (1977) 18 RIAA 3). These
concerns were taken care of by deviating from the equidistance method in view of the Scilly
Isles, which were given only ‘half effect’ (at 251). The same method has been applied by the
ICJ in the 1982 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) Case ([1982] ICJ Rep
18). in view of the Turkish island Kerhkennah and 1985 in the → Gulf of Maine Case
(Delimitation of the Maritime Boundary in the Gulf of Maine Area [Canada/United States of
America] [1984] ICJ Rep 246) concerning the Seal islands and a number of small islands off
the coast of Nova Scotia.

D. Status and Regime of the Continental Shelf

24 The continental shelf—and also the EEZ—deviates from the classical law of the sea
divide between full sovereign control over the territorial sea and the freedom of the high
seas in establishing distinct spaces of limited powers of the coastal State in between. These
powers are limited in the way that they exist mainly for the purpose of expoitation of
resources. They are neatly defined by specifying the rights and powers of coastal States
while at the same time securing rights and interests of third States and the international
community.

1. Attribution of Resources to the Coastal State

25 Article 77 (1) UN Convention on the Law of the Sea can be considered to reflect the
core of this structure by stating, that ‘the coastal State exercises over the continental shelf
sovereign rights for the purpose of exploring it and exploiting its natural resources’. The
UN Convention on the Law of the Sea specifically defines such resources. According to Art.
77 (4) UN Convention on the Law of the Sea, natural resources include mineral and other
non-living resources together with ‘living organisms belonging to sedentary species, that is

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 to say, organisms which, at the harvestable stage, either are immobile on or under the
seabed or are unable to move except in constant physical contact with the seabed or the
subsoil’. The latter clarification is important in order to properly delineate the resource
rights in the EEZ from those relating to the continental shelf. It is relevant in cases where
the area of the continental shelf at stake is not covered by an EEZ of the same State. More
importantly, the definition of resources is relevant in view of potential new uses of the
continental shelf (see below paras 37–41).

26 Altogether, these rules have a twofold meaning. First, they clarify that the said
resources are allocated to the respective coastal State in economic perspective. This means
that these States are entitled to such resources and their use, including the right to
conserve, to exploit, and to authorize third parties to use the resources. Article 77 (2) UN
Convention on the Law of the Sea adds to this by emphasizing that the entitlement of a
coastal State to the resources is an exclusive one.

27 Second, the rules assign to coastal States the authority to regulate the exploration and
exploitation of the resources. This authority is further ruled upon by a number of provisions,
including Arts 80 and 81 UN Convention on the Law of the Sea on artificial islands,
installations, and drilling (below paras 30–32). Also, this allocation of an exclusive right to
the resources is reflected by Art. 246 (5) (a) UN Convention on the Law of the Sea, which
allows coastal States to refuse the authorization of resource-related → marine scientific
research projects.

28 This assignment of the resources to the coastal State is supplemented by an element of

redistribution in view of the use of resources located in parts of the continental shelf
beyond 200nm. In order to reconcile the general claim of the international community to
the seabed, as, for instance, reflected by Art. 131 UN Convention on the Law of the Sea
with the possibly considerable extension of the continental shelf, Art. 82 UN Convention on
the Law of the Sea requires the coastal State to make payments or contributions in kind,
which are more specifically defined in the further provisions of Art. 82 UN Convention on
the Law of the Sea. These contributions or payments are due to the authority, which shall
distribute them to States Parties to the UN Convention on the Law of the Sea on the basis of
equitable sharing criteria (Art. 82 (4) UN Convention on the Law of the Sea).

2. Securing Third State Uses of the Continental Shelf and the Sea
29 The aforementioned entitlement to the resources of the coastal State is coupled with
safeguards concerning the use of the continental shelf and the waters above it by third
States. According to Art. 78 (2) UN Convention on the Law of the Sea, the exercise of the
rights of the coastal State must not infringe or result in any unjustifiable interference with
navigation and other rights and freedoms of other States as provided for in the UN
Convention on the Law of the Sea (see also → Navigation, Freedom of). Furthermore, Art.
79 UN Convention on the Law of the Sea expressly and specifically defines the right of all
States to lay submarine cables and → pipelines on the continental shelf.

3. Authority to Regulate and Enforce

30 Furthermore, the regime of the continental shelf includes a complex set of rules on
rights and duties of the coastal State to regulate the activities on the shelf and to enforce
certain rules and standards.

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 31 According to Art. 80 UN Convention on the Law of the Sea, the rules on → artificial
islands, installations, and structures as set up by Art. 60 UN Convention on the Law of the
Sea in the context of the EEZ are mutatis mutandis applicable also as far as the continental
shelf is concerned. Article 60 UN Convention on the Law of the Sea envisages an exclusive
right of the coastal State ‘to construct and to authorize and regulate the construction,
operation and use of (a) artificial islands; (b) installations and structures’ (Art. 60 (1) UN
Convention on the Law of the Sea). The cross-reference of Art. 80 UN Convention on the
Law of the Sea is relevant in all cases where such authority of the coastal State is not
already established on the basis of an existing EEZ covering the relevant location on the
continental shelf. The provision is particularly noteworthy because it contains certain limits
on such authority of the coastal State which are based on the purpose. As Art. 60 (1) (a) UN
Convention on the Law of the Sea in comparison to Art. 60 (1) (b) and (c) UN Convention on
the Law of the Sea clearly indicates, the authority of the coastal State is limited in the case
of installations and structures in view of certain purposes and concerns. While under Art.
60 (1) (a) UN Convention on the Law of the Sea, all sorts of artificial islands are covered,
installations and structures are only subject to the authority of the coastal State where they
serve purposes of resource use (as the link to Art. 56 UN Convention on the Law of the Sea
might indicate) and other economic purposes, or might interfere with the exercise of the
rights of the coastal State. Thus, installations and structures, which neither serve resource
uses or economic purposes nor have the potential to interfere with the rights of the coastal
State are not subject to the authority and thus can be established and operated without its
approval.

32 As the lack of a limitation regarding resource use and economic purposes in the case of
artificial islands may indicate, the authority of the coastal State sometimes goes beyond
what directly follows from the ‘sovereign rights for the purpose of exploring’ the continental
shelf and ‘exploiting its natural resources’ as assigned to coastal States by Art. 77 (1) UN
Convention on the Law of the Sea. The same holds true for the further ‘exclusive right’ of
coastal States ‘to authorize and regulate drilling on the continental shelf for all purposes’,
which is provided for in Art. 81 UN Convention on the Law of the Sea. As the explicit
reference ‘to all purposes’ clarifies, this authority is not confined to the control of any
resource-related or economic activity, but covers all drilling operations.

4. Marine Scientific Research and Environmental Protection

33 Furthermore, according to Art. 246 (1) UN Convention on the Law of the Sea ‘in the
exercise of their jurisdiction’, coastal States ‘have the right to regulate, authorize and
conduct marine scientific research…on their continental shelf’. However, this authority is
subject to the condition that coastal States shall grant their consent to research projects ‘in
normal circumstances’ (Art. 246 (3) UN Convention on the Law of the Sea). Furthermore,
they are under an obligation to ‘establish rules and procedures ensuring that such consent
will not be delayed or denied unreasonably’ (ibid). However, according to Art. 246 (5),
coastal States enjoy discretion to withhold their consent if a project

(a) is of direct significance for the exploration and exploitation of natural

resources; (b) involves drilling into the continental shelf, the use of explosives
or the introduction of harmful substances into the marine environment; (c)
involves the construction, operation or use of artificial islands, installations
and structures referred to in articles 60 and 80.

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 34 In turn, Art. 246 (6) UN Convention on the Law of the Sea excludes such exercise of
discretion in cases where such research is to be conducted on the continental shelf beyond
200nm from the baselines from which the breadth of the territorial sea is measured.

35 The rules on the continental shelf, however, do not only establish rights of the coastal
State but also obligations. According to Art. 208 (1) UN Convention on the Law of the Sea
the coastal State

shall adopt laws and regulations to prevent, reduce and control pollution of the
marine environment arising from or in connection with seabed activities subject to
their jurisdiction and from artificial islands, installations and structures under their
jurisdiction, pursuant to articles 60 and 80.

36 It is understood that ‘[s]uch laws, regulations and measures shall be no less effective
than international rules, standards and recommended practices and procedures’ (Art. 246
(3) UN Convention on the Law of the Sea). Furthermore, according to Art. 214 UN
Convention on the Law of the Sea States shall ‘enforce their laws and regulations adopted
in accordance with article 208 and shall…implement applicable international rules and
standards’.

5. New Uses and Challenges

37 As has been mentioned above, the emergence of the regime of the continental shelf did
respond to technological advances, which permitted the exploitation of resources at some
point in time. The detailed rules reflect such resource use—chiefly the exploration and
exploitation of mineral resources. Recently, science and technology have seen advances,
which allow for making use of the continental shelf in a way which deviates considerably
from those traditional patterns. These developments have a number of legal implications.

(a) Genetic Resources

38 First, genetic resources must be mentioned, which can be considered the input material
of biological, chemical, or pharmaceutical research and development. They are chiefly
addressed by the 1992 Convention on Biological Diversity (‘Biodiversity Convention’) an
environmental agreement, which according to its Art. 1 aims at the conservation of
biological diversity and the sustainable use of its components (→ Biological Diversity,
International Protection). According to its definitory Art. 2, genetic resources can be
considered ‘any material of plant, animal, microbial or other origin containing functional
units of heredity’ which has ‘actual or potential value’. Article 15 (1) Biodiversity
Convention clarifies that States have sovereign entitlements in view of genetic resources.
Furthermore, it emphasizes that States have the authority to grant access to such resources
and that there should be a fair and equitable sharing of the benefits arising out of the
utilization of such resources on mutually agreed terms. It is quite apparent that the type of
living resources envisaged by Art. 77 (4) UN Convention on the Law of the Sea, namely
‘living organisms belonging to sedentary species, that is to say, organisms which, at the
harvestable stage, either are immobile on or under the seabed or are unable to move except
in constant physical contact with the seabed or the subsoil’ represent genetic resources.

39 According to Art. 4 (a) Biodiversity Convention, the conventions’ jurisdictional scope

includes ‘areas within the limits of its national jurisdiction’, as far as ‘components of
biological diversity’ are concerned. Furthermore, according to Art. 22 (2) Biodiversity
Convention, the Biodiversity Convention shall be implemented ‘with respect to the marine
environment consistently with the rights and obligations of States under the law of the sea’.
In view of the kind of sovereign rights that the coastal State exercises for the purpose of
exploration and exploitation of natural resources as envisaged by Art. 77 (1) UN Convention
on the Law of the Sea, it can hardly be doubted that the continental shelf is to be

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
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 considered an area within the limits of national jurisdiction. The UN Convention on the Law
of the Sea itself does use the term ‘jurisdiction’ in relation to the continental shelf, as Art.
246 (1) UN Convention on the Law of the Sea indicates. Thus, the Biodiversity Convention
and its provisions on genetic resources are applicable in the context of the continental shelf.

40 Furthermore, the sovereign authority to grant access to genetic resources as envisaged

by Art. 15 Biodiversity Convention is mirrored by the authorities of a coastal State for the
purpose of exploration and exploitation under Art. 77 (1) UN Convention on the Law of the
Sea. It might be questionable in this regard whether such authority really requires an
additional basis in the rules on marine scientific research in Art. 246 (1) UN Convention on
the Law of the Sea, as is sometimes maintained. In addition, it is questionable whether the
notion of ‘marine scientific research’ will cover the variety of different forms and projects of
bioprospecting. In view of Art. 246 (5) UN Convention on the Law of the Sea, both
approaches are likely to allow the coastal State wide discretion. Such discretion may be
limited, however, in view of the obligation of resource States under Art. 15 (2) Biodiversity
Convention to ‘endeavour to create conditions to facilitate access to genetic resources’. As
this provision specifically imposes an obligation with regard to the category of genetic
resources, it is applicable also in the case of genetic resources situated on or in the
continental shelf.

(b) Storage of Carbon Dioxide

41 The continental shelf is also considered for storage of carbon dioxide. Anthropogenic
carbon dioxide emissions are considered to promote global warming (see also → Climate,
International Protection). Accordingly, efforts are made to reduce its concentration in the
atmosphere. This may be done by storing the substance. Geological formations in the
subsoil of the seabed may serve for that purpose and indeed, some projects have been
already carried out in this regard. In order to allow for such storage, the 1996 Protocol to
the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter ([done 7 November 1996, entered into force 24 March 2006] (1996) 36 ILM 1) and
the Convention for the Protection of the Marine Environment of the North-East Atlantic
([opened for signature 22 September 1992, entered into force 25 March 1998] 32 ILM
1069) have been amended in 2006 and 2007 respectively. In an almost identical wording,
the amendments allow for the storage of carbon dioxide streams in marine subsoil
geological formations and contain further rules for such activities. In view of storage
activities taking place on the continental shelf, the rights of the respective coastal State are
questionable. Such authority can hardly be based on Art. 77 (1) UN Convention on the Law
of the Sea, as the use of storage space in subsoil geological formations cannot be
considered to constitute the exploitation of a natural resource under Art. 77 (4) UN
Convention on the Law of the Sea. However, coastal States may authorize and regulate such
activities on the basis of their authority concerning artificial islands, installations, and
structures under Arts 80 and 60 UN Convention on the Law of the Sea and drilling on the
continental shelf according to Art. 81 UN Convention on the Law of the Sea.

E. Outlook
42 The regime of the continental shelf, which is of relatively recent origin, has brought
more than 30% of the world’s seabed under the special and limited sovereign rights of
coastal States. This has been made possible by establishing an intricate balance between
the interest of coastal States in exploring and exploiting the resources of the shelf and the
interest of third States and the international community regarding other uses of the sea and
the seabed. This proper balance has been the main issue during the emergence of the
regime of the continental shelf. Nowadays, delimitation may be considered the predominant
legal issue at hand. Furthermore, the technological advances which once led to the creation

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
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 of the regime of the continental shelf may in the future allow for new and innovative uses
and thus may require adaptations of the legal structures.

Select Bibliography
ED Brown The Legal Regime of Hydrospace (The London Institute of World Affairs
London 1971).
DP O’Connell International Law of the Sea (Clarendon Press Oxford 1982) vol 1, 443.
J-F Pulvenis ‘The Continental Shelf Definition and Rules Applicable to Resources’, in
RJ Dupuy and D Vignes (eds) A Handbook on the New Law of the Sea (Nijhoff
Dordrecht 1991) 315–382.
ED Brown The Continental Shelf (Nijhoff Dordrecht 1992).
SN Nandan and S Rosenne ‘Articles 1–85, Annexes I and II, Final Act, Annex II’, in MH
Nordquist (ed) United Nations Convention on the Law of the Sea 1982: A
Commentary (Nijhoff Dordrecht 1993).
D Pharand and U Leanza The Continental Shelf and the Exclusive Economic Zone:
Delimitation and Legal Regime (Nijhoff Dordrecht 1993).
B Kwiatkowska ‘The International Court of Justice and Equitable Maritime Boundary
Delimitation’ (1998) 28 EnvtlPolyL 261–267.
RR Churchill and AV Lowe The Law of the Sea (3rd ed Manchester University Press
Melland Schill Studies Manchester 1999).
R Wolfrum and N Matz ‘The Interplay of the United Nations Convention on the Law of
the Sea and the Convention on Biological Diversity’ (2000) 4 MaxPlanckUNYB 445–
480.
PJ Cook Continental Shelf Limits: The Scientific and Legal Interface (OUP Oxford
2000).
B Kwiatkowska Decisions of the World Court Relevant to the UN Convention on the
Law of the Sea: A Reference Guide (Kluwer Deveter 2002).
R Lagoni and A Proelβ ‘Festlandsockel und ausschlieβliche Wirtschaftszone’, in W
Graf Vitzthum (ed) Handbuch des Seerechts (Beck München 2006) 161–286.
SV Suarez The Outer Limits of the Continental Shelf—Legal Aspects of their
Establishment (Springer Berlin 2008).

Select Documents
Agreement relating to the Implementation of Part XI of the United Nations
Convention on the Law of the Sea of 10 December 1982 (done 28 July 1994, entered
into force 28 July 1996) 1836 UNTS 41.
Convention on Biological Diversity (concluded 5 June 1992, entered into force 29
December 1993) 1760 UNTS 79.
Convention on the Continental Shelf (done 29 April 1958, entered into force 10 June
1964) 499 UNTS 311.
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/Netherlands) [1969] ICJ Rep 3.
Continental Shelf Case (Libyan Arab Jamahiriya/Malta) [1985] ICJ Rep 13.
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United
States of America) [1984] ICJ Rep 246.
Report and Recommendations to the Governments of Iceland and Norway of the
Conciliation Commission on the Continental Shelf Area between Iceland and Jan
Mayen (1981) 20 ILM 797.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Francisco Coutinho; date: 11 February 2022
 United Nations Convention on the Law of the Sea (concluded 10 December 1982,
entered into force 16 November 1994) 1833 UNTS 3.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.
Subscriber: Francisco Coutinho; date: 11 February 2022