5.3 The Outer Continental Shelf and the Area
The continental shelf regime arose from the dichotomy between the founding
principles of freedom of the seas and territorial sovereignty, which have traditionally
opposed coastal and flag states. Nonetheless, the delineation of outer continental
shelf limits does not concern exclusively those parties, nor does it concern solely the
coastal state and the CLCS. In fact, it interests the international community at large,
since outer continental shelf limits shall define the boundary between the seafloor
under national jurisdiction and the Area. It pertains to a new actor in the law of the
sea chess table: humanity.
24
Recent developments in the law of the sea brought to life another core principle in
order to safeguard the interests of humanity, which rendered the relationship
between the continental shelf and the ocean floor beyond national jurisdiction all
the more complicated. The traditional principle of mare liberum is now faced not
only with its centuries-old contender, but with the common heritage of mankind
principle,
25 applicable to the maritime zone of the Area. No matter how convoluted
the previously analyzed interaction between the regimes of the continental shelf
regime, EEZ and the high seas is, the knottiest interaction between regimes of
UNCLOS is that of the continental shelf and Area.
Consequently, overlapping rules and distinct legal nuances as to the rights and
duties of the coastal states in the intersection between those two maritime zones,
added to the indeterminacy of their concrete boundaries worldwide will likely raise
legal uncertainty as to the applicable regime, namely in borderline cases. Examples
of those delicate nuances is the relation between the application of the common
heritage principle in the Area
26 and the consequences for the delineation of outer
continental shelf limits; or the institution of a revenue-sharing system for commercial activities occurring on the continental shelf beyond 200 nm, pursuant to Art.
82 UNCLOS. These issues are further analyzed below, alongside the topic of
boundary indeterminacy and the environmental protection standards applicable in
the Area and the on outer continental shelf.
As experts in the field have confirmed, the legal relationship between the outer
continental shelf and the Area remains understudied.
27 In this juncture, it is still valid
to ask whether peaceful coexistence between norms of the outer continental shelf
and the Area will exist.
28 In fact, there was plenty of tension between the common
24 Yu and Ji-Lu (2011), p. 318.
25 Art. 136, UNCLOS. For more on the metaphoric “battle” between the principles in the law of the
sea, refer to Brown (1982), p. 521.
26 Art. 136, UNCLOS, on the principles governing the Area.
27 Chircop (2011), p. 307.
28 The tension between both regimes was captured by McDorman, to whom the emergence of the
common heritage principle and the will to establish a just international regime for the areas beyond
national jurisdiction, based on the sharing of benefits, has been but a “blip in the law-of-the-sea
radar”. See McDorman (2015), p. 202.
116
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .
The continental shelf regime arose from the dichotomy between the founding
principles of freedom of the seas and territorial sovereignty, which have traditionally
opposed coastal and flag states. Nonetheless, the delineation of outer continental
shelf limits does not concern exclusively those parties, nor does it concern solely the
coastal state and the CLCS. In fact, it interests the international community at large,
since outer continental shelf limits shall define the boundary between the seafloor
under national jurisdiction and the Area. It pertains to a new actor in the law of the
sea chess table: humanity.
24
Recent developments in the law of the sea brought to life another core principle in
order to safeguard the interests of humanity, which rendered the relationship
between the continental shelf and the ocean floor beyond national jurisdiction all
the more complicated. The traditional principle of mare liberum is now faced not
only with its centuries-old contender, but with the common heritage of mankind
principle,
25 applicable to the maritime zone of the Area. No matter how convoluted
the previously analyzed interaction between the regimes of the continental shelf
regime, EEZ and the high seas is, the knottiest interaction between regimes of
UNCLOS is that of the continental shelf and Area.
Consequently, overlapping rules and distinct legal nuances as to the rights and
duties of the coastal states in the intersection between those two maritime zones,
added to the indeterminacy of their concrete boundaries worldwide will likely raise
legal uncertainty as to the applicable regime, namely in borderline cases. Examples
of those delicate nuances is the relation between the application of the common
heritage principle in the Area
26 and the consequences for the delineation of outer
continental shelf limits; or the institution of a revenue-sharing system for commercial activities occurring on the continental shelf beyond 200 nm, pursuant to Art.
82 UNCLOS. These issues are further analyzed below, alongside the topic of
boundary indeterminacy and the environmental protection standards applicable in
the Area and the on outer continental shelf.
As experts in the field have confirmed, the legal relationship between the outer
continental shelf and the Area remains understudied.
27 In this juncture, it is still valid
to ask whether peaceful coexistence between norms of the outer continental shelf
and the Area will exist.
28 In fact, there was plenty of tension between the common
24 Yu and Ji-Lu (2011), p. 318.
25 Art. 136, UNCLOS. For more on the metaphoric “battle” between the principles in the law of the
sea, refer to Brown (1982), p. 521.
26 Art. 136, UNCLOS, on the principles governing the Area.
27 Chircop (2011), p. 307.
28 The tension between both regimes was captured by McDorman, to whom the emergence of the
common heritage principle and the will to establish a just international regime for the areas beyond
national jurisdiction, based on the sharing of benefits, has been but a “blip in the law-of-the-sea
radar”. See McDorman (2015), p. 202.
116
5 Jurisdictional Intersections Between the Continental Shelf and Other Maritime. . .