Abstract
With the methods and implications of shelf utilization and control already surveyed and their political and legal problems outlined in some detail, we proceed with the examination of the legal regime of the continental shelf through a study of various bilateral situations, existing or assumed. Our main aim now is to study the various relevant factors effecting the emergence of bilateral and multilateral relationships developing on the continental shelf.
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References
44 (No. 22) Oil and Gas Journal 72 (6 October 1945).
Pp. 73-74.
The absence of protest, of course, need not be significant; as we have seen (p. 74), no over-water drilling operations were undertaken in the high seas of the Gulf until 1955, and the Order in Council itself may not have been considered an occasion for protest.
Louisiana offshore lease sale in 1945, Table II, p. 52.
For early Gulf of Paria shelf activity, cf. p. 73, especially footnote 8.
Full text in “Bahamas, Acts passed in the year 1945,” No. 1, p. 1 (Nassau, 1945). Excerpts from the Act in 1 U.N. Legislative Series 30-31 (1951).
Text with several annexed forms of exploration, prospecting and oil mining licenses and leases in Bahamas, Appendix to the Statutes of 9 George VI, Orders in Council and Rules and Regulations Made During the Year 1945.
The only such reference, in a negative sense, is to be found in Article 6 of the Act, providing that no exploration and prospecting license or an oil mining lease “shall be granted in respect of New Providence or the land underlying the sea within four miles thereof except with the consent of the Legislature.” Emphasis added.
U.N. Legislative Series 31-32 (1951). For the chronological position of the Order in Council in relation to unilateral declarations and enactments of other countries, p. 44.
The Bahamas Oil Company, Ltd., incorporated under the laws of the Bahama Islands, was formed in 1944 as a subsidiary of the Superior Oil Company, a California corporation. It was through the courtesy of the Superior Oil Company and its attorney, F. P. Jones, Jr., that the writer was able to procure copies of four licenses granted by the Petroleum Board of the Bahamas Government to the Superior’s subsidiary, and by this note he also wishes to express his gratitude for the excellent cooperation he received. The following text, unless otherwise indicated, refers to documents and correspondence supplied by the Superior Oil Company.
The first of the two licenses includes a submarine area of 6,958 square miles, covering the northern part of the Great Bahama Bank east of the Straits of Florida. From its northernmost tip in the vicinity of the Isaacs Lighthouse, some twenty-five miles north of the North Bimini Island, the area is on the west side bounded by a slightly curved line running south for some 140 miles — the line marked on the license plan as the “10 fathom line” — to 24° 16′ N. lat. From this line the area extends generally to the east toward Andros Island whose northern part is al so included in the license. However, the land area licensed for exploration — part of Andros Island, the Biminis and certain adjoining cays — is measured separately and accounts for additional 1,195 square miles. Making a liberal allowance for submarine areas under territorial waters, one still finds more than 6,000 square miles of the continental shelf licensed for oil exploration to be under the high seas.
The second oil exploration license, of the same type and issued on the same date as the first, includes what is known as the Cay Sal Bank; the major part of the 843 square miles of the submarine area covered by the license lies between 79°30′ and 80°30′ W. long., and 23°30′ and 24°10′ N. lat. Two additional square miles represent land area of the included cays. The plan annexed to the license again shows the boundary line as the “10 fathom line” — and a major portion of the licensed submarine area is again a part of the continental shelf covered by the high seas.
“Form A. Oil Exploration License. Crown Lands, Alienated Lands and Submarine Areas’. Cf., note 7.
Article 3 of the Act. Cf., note 6.
“Form B. Oil Prospecting License. Crown Lands and Sub-marine Areas.” A copy of a Form B license issued to Bahamas Oil Company in 1946 by the Bahamas Petroleum Board was also supplied to the writer by the Superior Oil Company.
Included in the license in accordance with article 9 of the Bahamas Petroleum Act 1945, note 6.
While the Bahamas Oil Company seems to have been the first one to receive a continental shelf exploration license issued under the authority of the Bahamas Petroleum Act 1945, it was closely followed by others. In 1946, Standard Oil Company (New Jersey) launched a search for oil on 2,000 square miles of licensed submarine area off Grand Bahama Island, east of West Palm Beach, Florida, and separated from the United States mainland by the relatively deep water of the Florida Straits. News report, 122 (No. 10) The Oil Weekly 36 (international section, 5 August 1946); and 123 (No. 6) The Oil Weekly 22-23 (international section, 7 October 1946).
Emphasis added.
The Biminis and Florida do not have a common shelf. While the distances between the Biminis and the areas immediately outside Florida’s maritime limits would easily permit operations by a company based on the Biminis, the waters of the Florida Straits separating the two land areas reach maximum depths of 800 meters. Harald U. Sverdrup, Martin W. Johnson, and Richard H. Fleming, The Oceans, Their Physics, Chemistry and General Biology (New York: Prentice Hall, 1942), p. 37.
On geographical limits of shelf rights claimed in 1945 by the United States Government, see pp. 81-82. For an official view, in our opinion erroneous, advanced in 1960 and suggesting that the Truman Proclamation should have been understood as claiming submarine areas even beyond the geographical limits of th continental shelf, see pp. 108 ff. and accompanying note 144.
1 U.N. Legislative Series (1951) 31.
Pp. 108 ff.
Pp. 81 ff.
At this point, we are concerned only with the legal situation as it existed bilaterally, between the United States and the United Kingdom. on the continental shelves controlled by the two governments. Of course, the question of coastal state’s responsibility for the safety of foreign users of the high seas above the utilized areas of the continental shelf invites an inquiry into multilateral legal relations produced by the continental shelf practice, a problem dealt with further below.
The text of the Abu Dhabi Award of Lord Asquith of Bishopstone appears in the United States Naval War College, International Law Situation and Documents 1956 (Washington, D.C.: Government Printing Office, 1957), pp. 137-155. References to the Award in the present section — e.g. Award 154 — are to the text and page of the United States Naval War College volume.
Award 139-140, translation by the Sheikh relied upon by Lord Asquith. See Award 142.
Award 138-139.
Award 144.
Award 145.
Award 149.
Award 150.
Award 152.
Award 148.
Award 152.
Id.
Abu Dhabi’s boundaries with the two Sheikhdoms — Qatar to the west and Dubai to the east — are said to be vague only to some extent. In the interior, however, Abu Dhabi’s territory virtually blends into the sands of Rub’ al Khali desert of Saudi Arabia. The Award mentions (at 137) that the interior boundary is so indeterminate that Abu Dhabi’s area has been estimated at anything from 10,000 to 26, 000 square miles.Yet a look into the standard world gazeteer, usually reliable, suggests that the uncertainty may be still graeter: the total area of all seven Sheikhdoms comprising the Trucial Oman, Abu Dhabi included, is said to be about 6,000 square miles. See Rand McNally (publ.). World Guide (New York: 1953), p. 328.
1 U.N. Legislative Series 23-30.
Ibid. 22.
Award 154.
Award 153.
Aramco had the technical means as well as the experience necessary for such a venture. There is, of course, no indication whatsoever that the company ever contemplated any similar move. Whatever may have been the legal status of Abu Dhabi’s outer submarine areas after the Award and its possible consequences in our artificially constructed situations, it was in the interest of the oil companies active in and around the Persian Gulf not to disturb the orderly regime of coastal jurisdiction being established there, even if it was a system costly to the companies.
See the estimate at p. 64 that, in 1948, some sixty governmental agencies of the United States were directly involved in the implementation of the continental shelf policy.
The Committee on Interior and Insular Affairs of the United States Senate hald a number of public hearings between 1949 and 1953 with a view to legislating in conformity with the continental shelf doctrine as promulgated by President Truman. See U.S. Congress, Senate, Committee on Interior and Insular Affairs, under the title Submerged Lands, Hearings on: S.155, S.923, S. 1545, S.1700, S.2153, held 4–10 October 1949 (81st Congress, 1st Sess.); on S.J. Res. 195, held 14–19 August 1950 (81st Congress., 2nd Sess,); on S.J. Res. 13, S.294, S.107, S.107, Amendm., S.J. Res. 18, held 10, 17–20 and 23–27 February and 2–4 March 1953 (83rd Congress, 1st Sess.); on S.1901, S. 1901 Amendm., held 16, 18–23,25 and 28 May and 1 June 1953 (83rd Congress, 1st Sess.). And, also, U.S. Congress, House of Representatives, Committee on Interior and Insular Affairs, Investigation and Study of the Seaward Boundaries of the United States, Report, 1953 (82nd Congress, 2nd Sess., H. Rept. 2515). The Outer Continental Shelf Lands Act (67 Stat. 462) was approved on 7 August 1953.
On the terms and spirit of reciprocity of the 1945 Truman Proclamation see pp. 75-79.
See sections on the industrial and state involvement on the United States continental shelf in the Gulf of Mexico, pp. 52-53 and 59-63.
On the question of geographical limits within which acts of occupation may be recognized as effectively creating a title see Norman L. Hill, Claims to Territory in International Law and Relations (New York: Oxford University Press, 1945), pp. 146-154.
See pp. 124 ff. above on British practice in the Bahamas.
See discussion of estoppel on British freedom of action in the Caribbean at pp. 128 ff.
In 1955, Compagnie Française des Petroles actually started exploratory work on a large Abu Dhabi offshore concession obtained from Sheikh Shakhbut. In 1957, the Japanese Petroleum Development (Export) Company acquired large offshore concessions from Saudi Arabia and Kuwait.
U.N. Conference on the Law of the Sea, 6 Official Records 22, para. 36. During the forty-two meetings of Committee IV and in the three plenary meetings devoted to the continental shelf, the French delegation actively participated in the shaping of the draft convention by discussion and proposals.
Ibid. 14, para 1. The second and last contribution by the Japanese delegation to Committee IV discussions came thirteen days and eleven meetings later, after the general debate had been closed, views of the majority of states presented, a recommendation by the Federal Republic of Germany for an internationalization of continental shelves (U.N. Doc. A/CONF.13/C.4/L.1 in ibid. 125) virtually ignored and pushed aside, and the first article defining the continental shelf adopted by 51 votes to 9 with 10 abstentions (ibid. 47); only then, obviously accepting the demonstrated political realities, did the Japanese delegate admit that “unfortunately the solution of international exploitation [of submarine resources as a source of prosperity for mankind] … was not yet feasible.” Ibid. 56, para. 11. In the plenary meetings, Japanese voice was heard but twice on problems of the continental shelf: when the Japanese delegate stressed that in Committee IV his delegation did not vote for any of the substantive draft articles on the regime of the continental shelf except draft article 74 providing for compulsory settlement of disputes (ibid. 106, para. 44, and 2 Official Records 19, para. 49), and when he explained that he had voted against the Convention because no reservations were admitted to the first three articles and because article 74 had been rejected. Ibid. 57, para. 36.
So described by Lord Asquith, Award 142.
According to the Sheikh’s proclamation, “the right of any littoral State to exercise its control over the natural resources of the seabed and subsoil adjacent to its coasts has been established in international practice by the action of other States.” 1 U.N. Legislative Series 23 (1951).
Not to complicate the situation unnecessarily, the postwar status of Japan as an occupied country is here generally disregarded. However, one might be able to defend the contention that Japan, when it regained the status of a sovereign state, was still obligated to honor such commitments as it may have had undertaken through its actions or inaction while under “hostile occupation.” (For a definition of “hostile occupation” distinguishing it from “belligerent,” “pacific” and “peaceful” occupation, see William G. Downey, Jr., “Revision of the Rules of Warfare,” 1949 Proceedings of the American Society of International Law 103). The defense, in general, would probably have to rest on the principle that a “military occupant, especially one who has conquered and subjugated a country, has supreme power over the territory occupied, and, to all intents and purposes, is the sovereign during the period of occupation” (6 Hackworth, International Law 385-414), and on the consequent view that Japan, once more sovereign, was bound by the actions of its previous military government. Of course, an argument could possibly be also raised that the relation between Japan and the United States as one of the governing military powers was of a special character and that Japan could not be forever bound by the acts and omissions of a temporary military government, especially if such acts and omissions would directly benefit the occupant even after the occupation was ended. This argument would probably be further strengthened by evidence showing that, during the period of occupation, such Japanese authorities as might have been then recognized notified the military occupant of their disagreement with the latter’s continental shelf policy considered potentially harmful to the future interest of Japan. However, no such evidence is known to exist, and it is not our task here to resolve this particular problem of the continuity of the state of Japan; for our purposes, we might as well consider Japan as a state responsible for the acts or omissions of its postwar governments, whatever their character.
The term “prescriptive right” is used here advisedly to signify a specific right within an area rather than a full territorial title acquired by prescription. As to the usual requirement of a long operation of time for the existence of prescriptive rights no agreement appears to exist among writers as to any specific duration. “No general rule can be laid down.” L. Oppenheim, International Law:A Treatise, 6th ed., ed. by H. Lauterpacht, v. 1 (London: Longmans, Green fh Co., 1947), p. 527. And — “… le Droit International ne comporte pas de delais determines des prescriptions, et il est un peu naif de la part de certains auteurs d’avoir essayé de les chiffrer (quarante ou cinquante ans) …” Georges Scelle, Manuel de Droit International Public (Paris: Domat-Montchrestien, 1948), p. 160. — Also, compare the view of Josef L. Kunz regarding the claims of some Latin American states to a two-hundred-mile breadth of their territorial sea: “… it is very important for the United States to take correct action in order not to make possible the argument of acquiescence. That a new rule of customary international law may come into being by acquiescence is not to be feared, as the overwhelming majority od states are strongly opposed to a two-hundred-mile limit of territorial waters. But acquiescence may lead to a prescriptive right. True, the United States has protested. As long as foreign states only enact municipal legislation, contrary to international law, or even conclude treaties of this type without doing anything to apply them, a strong protest is sufficient to preserve the rights of the protesting state. But when such states, as it is here the case, insist constantly and everywhere upon their unlawful claims and enforce them by forceful action and in their own courts, things are different. First, protests must be repeated. But even repeated protests may be insufficient in law, may become mere ‘paper’ protests, unable to bar title by prescription. In such case, more than mere protests is required by international law, international tribunals and courts. Protests in such cases must be supported by further action.” Josef L. Kunz, “Continental Shelf and International Law: Confusion and Abuse,” 50 American Journal of International Law 852 (1956).
Public Law 88-308, “to prohibit fishing in the territorial waters of the United States and in certain other areas” by foreign vessels, 78 Stat. 194-196, 1964.
50 Department of State Bulletin 936 (June 15, 1964).
51 ibid. 829-830 (7 Dec. 1964).
Ibid. 892-893 (21 Dec. 1964).
U.N. Conference on the Law of the Sea, 6 Official Records 4, Dec. A/CONF. 13/42.
Richard Young, “Offshore Claims and Problems of the North Sea,” 59 American Journal of International Law 511–512 (1965).
Memorandum of the Federal Republic of Germany, Doc. A/CONF.13/C.4/L.1, in U.N. Conference on the Law of the Sea, 6 Official Records 126-127.
See Richard Young, op. cit. (note 61) 513.
See, concerning the right of a state to seize a vessel without an identifiable national character the case of Molvan v. Attorney General for Palestine, 1948 Appeal Cases (Great Britain) 351. According to Rienow, “the entire legal system which States have evolved for the regulation of the use of the high seas is predicated on the possession by each vessel of a connection with a State having a recognized maritime flag.” R. Rienow, The Test of the Nationality of a Merchant Vessel (New York: Columbia University Press, 1937), p. 13.
The text of the Convention can be found in: U.S. Congress. Senate. Treaties, Conventions, International Acts, Protocols, and Agreements between the United States of America and Other Powers 1923–1937, vol. 4 (Washington, D.C.: Government Printing Office, 1938), pp. 5134-5209. (75th Congress, 2d Sess., Doc. No. 134).
Possibly, the following provisions of the 1929 Convention might indirectly apply: Article 34 [Chapter V, Safety of Navigation]: The master of every ship which meets with dangerous ice, a dangerous derelict, a dangerous tropical storm or any other direct danger to navigation is bound to communicate the information.… Each Administration [note: the term Administration designates a signatory state] will take all steps which it thinks necessary to ensure that when intelligence of any of the dangers specified in the previous paragraph is received, it will be promptly brought to the knowledge of those concerned and communicated to other Administrations interested. Ibid., p. 5144. As between the contracting governments, the 1929 Convention was replaced and abrogated by its 1948 version which entered into force on 19 November 1952. The text of the 1948 Convention is in 3 U.S. Treaties and Other International Agreements (No. 2495) 3450 ff. The two cited paragraphs of article 34 of the 1929 Convention have become, in the 1948 version, paragraphs (a) and (b) of Regulation 2, Chapter V on Safety of Navigation. Ibid. 3644.
These companies did in fact jointly search for oil off Gabon in 1960. 13 (No. 2) Offshore 18 (August 1960).
P. 143, footnote 49.
Memorandum by the Federal Republic of Germany, U.N. Doc. A/CONF.13/C.4/L.1, is included as an annex in UN Conference on the Law of the Sea, 6 Official Records 126 (Doc. A/CONF. 13/42).
The German memorandum of 1958 admitted there was no “world organization capable of supervising the enforcement” of the necessary continental shelf rules “on behalf of the international community” and, after proposing that the coastal state be empowered to undertake such controls, stated the functions of the coastal state as follows: “(a) To satisfy itself that the operator fulfills the necessary conditions qualifying him to carry out the proposed work; (b) To supervise the concerns engaged in prospecting and exploitation; (c) To delimit the prospecting and exploitation areas of each operator.” Among the necessary rules the Federal Republic of Germany listed provisions such as: “the operations of prospecting and exploitation shall not prejudice unnecessarily navigation or fishing, telegraphic communications, sea bathing, etc. — e.g.: (i) They must not unduly obstruct the movements of shipping; (ii) They must not cause excessive pollution of the sea; (iii) They must not cause undue harm to marine fauna and flora …” Ibid.
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© 1968 Martinus Nijhoff, The Hague, Netherlands
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Slouka, Z.J. (1968). Bilateral Perspectives of the Legal Regime of the Continental Shelf. In: International Custom and the Continental Shelf. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9210-1_4
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