The Continental Shelf and International Custom: Assessment and Conclusions

Abstract

We have set out to inquire, through a study of the legal regime of the continental shelf, into some of the processes through which states, by acting or failing to act in respect of a specific international issue or situation, narrow their choice of policies in that particular sphere up to the point of being bound by legal rules. We have found some of the traditional methods of inquiry into the validity of customary rules not to be very helpful as a guide, especially where they strive directly to assert or to deny the existence of a general rule of international customary law and, consequently, lose the sight of the gradual, dynamic process of the growth of custom, of its complexity and flexibility. In an attempt to overcome this difficulty, we have utilized, in the specific case of the continental shelf regime, a method of inquiry characterized as the bilateral approach: a method whereby one examines a customary rule as a composite and dynamic pattern of varied bilateral state relationships, and follows its growth from its historical beginnings toward a broader application; and a method, too, which neither denies nor asserts in advance that a rule of custom must or cannot acquire universal validity.