20
As noted by the Tribunal, natural prolongation was first introduced by the ICJ in
the North Sea Continental Shelf Case
30
“as a fundamental notion underpinning the
regime of the continental shelf”.
31
However, the expression is not defined in the text
of the ICJ’s judgment
32
or, most importantly, in UNCLOS. Bangladesh invited the
Tribunal to adopt a literal interpretation, arguing that, in its ordinary meaning, the
expression “natural prolongation of its land territory” in Article 76(1) “refers to the
need for geological as well as geomorphological continuity between the land mass
of the coastal State and the seabed beyond 200 nm”, and that “[w]here, as in the case
of Myanmar, such continuity is absent, there cannot be entitlement [to outer shelf
areas] beyond 200 nm”.
33
The Tribunal rejected Bangladesh’s argument and, going
beyond the ordinary meaning of the expression, clarified that
the reference to natural prolongation in article 76, paragraph 1, of the Convention, should
be understood in light of the subsequent provisions of the article defining the continental
shelf and the continental margin. Entitlement to a continental shelf beyond 200 nm should
be determined by reference to the outer edge of the continental margin, to be ascertained in
accordance with article 76, paragraph 4. To interpret otherwise is warranted neither by the
text of article 76 nor by its object and purpose.
34
Several international courts and tribunals have applied all of the VCLT criteria of
interpretation simultaneously, including with respect to Articles 281 and 282
UNCLOS and the subordination clauses contained therein.
35
Both of these articles apply solely to disputes concerning also or only UNCLOS
and do not refer to a means of settlement of other categories of international
30 ICJ, North Sea Continental Shelf Case (Federal Republic of Germany v. Netherlands; Federal
Republic of Germany v. Denmark), Judgment, 20 February 1969, para. 19. See also, for instance,
paras. 41, 43, 85, 95, 101.
31 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment,
para. 432.
32 Paik (2015) pp. 584–585 notes that “[t]he Court in the 1969 Judgment used the term ‘natural
prolongation’ on numerous occasions. Despite its recurring use, the term did not necessarily carry
the same nuance from one paragraph to another. In addition, the term itself received no definition
form the outset. The result was obvious, an extreme ambiguity on the meaning of natural prolongation. The matter became much worse since the paragraphs have been subsequently referred to and
quoted out of context”.
33 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment,
para. 426.
34 Ibidem, para. 437.
35 Article 281 UNCLOS reads: “1. If the States Parties which are parties to a dispute concerning the
interpretation or application of this Convention have agreed to seek settlement of the dispute by a
peaceful means of their own choice, the procedures provided for in this Part apply only where no
settlement has been reached by recourse to such means and the agreement between the parties does
not exclude any further procedure. 2. If the parties have also agreed on a time-limit, paragraph 1
applies only upon the expiration of that time-limit”. Article 282 UNCLOS reads: “If the States
parties which are parties to a dispute concerning the interpretation or application of this Convention
have agreed, through a general, regional or bilateral agreement or otherwise, that such a dispute
shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding
decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the
parties to the dispute otherwise agree”.
R. Virzo
As noted by the Tribunal, natural prolongation was first introduced by the ICJ in
the North Sea Continental Shelf Case
30
“as a fundamental notion underpinning the
regime of the continental shelf”.
31
However, the expression is not defined in the text
of the ICJ’s judgment
32
or, most importantly, in UNCLOS. Bangladesh invited the
Tribunal to adopt a literal interpretation, arguing that, in its ordinary meaning, the
expression “natural prolongation of its land territory” in Article 76(1) “refers to the
need for geological as well as geomorphological continuity between the land mass
of the coastal State and the seabed beyond 200 nm”, and that “[w]here, as in the case
of Myanmar, such continuity is absent, there cannot be entitlement [to outer shelf
areas] beyond 200 nm”.
33
The Tribunal rejected Bangladesh’s argument and, going
beyond the ordinary meaning of the expression, clarified that
the reference to natural prolongation in article 76, paragraph 1, of the Convention, should
be understood in light of the subsequent provisions of the article defining the continental
shelf and the continental margin. Entitlement to a continental shelf beyond 200 nm should
be determined by reference to the outer edge of the continental margin, to be ascertained in
accordance with article 76, paragraph 4. To interpret otherwise is warranted neither by the
text of article 76 nor by its object and purpose.
34
Several international courts and tribunals have applied all of the VCLT criteria of
interpretation simultaneously, including with respect to Articles 281 and 282
UNCLOS and the subordination clauses contained therein.
35
Both of these articles apply solely to disputes concerning also or only UNCLOS
and do not refer to a means of settlement of other categories of international
30 ICJ, North Sea Continental Shelf Case (Federal Republic of Germany v. Netherlands; Federal
Republic of Germany v. Denmark), Judgment, 20 February 1969, para. 19. See also, for instance,
paras. 41, 43, 85, 95, 101.
31 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment,
para. 432.
32 Paik (2015) pp. 584–585 notes that “[t]he Court in the 1969 Judgment used the term ‘natural
prolongation’ on numerous occasions. Despite its recurring use, the term did not necessarily carry
the same nuance from one paragraph to another. In addition, the term itself received no definition
form the outset. The result was obvious, an extreme ambiguity on the meaning of natural prolongation. The matter became much worse since the paragraphs have been subsequently referred to and
quoted out of context”.
33 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment,
para. 426.
34 Ibidem, para. 437.
35 Article 281 UNCLOS reads: “1. If the States Parties which are parties to a dispute concerning the
interpretation or application of this Convention have agreed to seek settlement of the dispute by a
peaceful means of their own choice, the procedures provided for in this Part apply only where no
settlement has been reached by recourse to such means and the agreement between the parties does
not exclude any further procedure. 2. If the parties have also agreed on a time-limit, paragraph 1
applies only upon the expiration of that time-limit”. Article 282 UNCLOS reads: “If the States
parties which are parties to a dispute concerning the interpretation or application of this Convention
have agreed, through a general, regional or bilateral agreement or otherwise, that such a dispute
shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding
decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the
parties to the dispute otherwise agree”.
R. Virzo