superjacent water column above it.”
38 There occurs, thus, a separation between law
and science. The concept of continental shelf adopted in UNCLOS Art. 76 (4) is
different from the scientific one. In fact, the continental shelf as regulated by
UNCLOS is a legal fiction, which justifies its popular nomenclature as “juridical”
or “legal continental shelf”.
39 In UNCLOS definition, the seabed itself has a limited
role; only distance is preferred.
40
Historically, the continental shelf can be portrayed as an infant concept within the
law of the sea, the birth of which dates back to the well-known Truman Proclamation
in 1945. At the outset, however, it should be noted that an in-depth discussion of the
history of continental shelf provisions in the law of the sea escapes the purpose of
this work. For now, some brief commentaries on the most paradigmatic events
leading up to the current continental shelf regime can be of aid in understanding
the main rules, functioning and, eventually, weaknesses and deficiencies of that
regime.
On a brief, panoramic overview on the evolution of the law governing the seabed,
it is no novelty that ground zero was that policy document by the US Presidency.
However, a cardinal precursor of such document was the 1942 Treaty Between the
United Kingdom and Venezuela on the submarine areas of the Gulf of Paria,
41 which
sought to extend coastal rights beyond the traditional 3 nm territorial sea. That
agreement was followed by a UK Council Order stipulating the annexation of the
British part of the Gulf, using a language that strongly indicates British belief of
being entitled to exercise territorial sovereignty over the “submarine areas” of the
Gulf, in the first modern reference to “submarine areas”.
42 As such, the treaty
amounted to the first exercise of sovereignty over the seabed beyond the traditional
length of the territorial sea.
In this context, the 1945 Truman Proclamation, popular term for the “Presidential
Policy of the United States with Respect to Natural Resources of the Subsoil and Sea
Bed of the Continental Shelf”,
43 unilaterally declared the natural resources of the
subsoil and the seabed of the continental shelf to be under the jurisdiction and control
38 See ILA (2002), p. 11. Also, a definition for the phrase “superjacent waters” may be found in a
report by the UN Office for Ocean Affairs and the Law of the Sea (DOALOS) as “the waters lying
immediately above the seabed or deep ocean floor up to the surface”.
39 In this sense, Suarez considers that the “legal continental shelf” was the result of a battle between
the objective and the subjective. During UNCLOS III negotiations, two proposals on the definition
of continental shelf were at the table: the distant-based model and the one based on geology and
geomorphology. A compromise was struck by adopting both models. See Suarez (2008), p. 13. See
also Magnússon (2017), p. 8.
40 Due to the continental shelf’s legal character, in particular the space beyond 200 nm, the Brazilian
Navy refers to it as “juridical continental shelf”, or plataforma continental jurídica, in Portuguese.
See LEPLAC—Plan for the Assessment of the Brazilian Continental Shelf. Available at: https://
www.marinha.mil.br/secirm/leplac. Accessed 30 March 2020.
41 Treaty Between the United Kingdom of Great Britain and Northern Ireland and the Republic of
Venezuela Relating to the Submarine Areas of the Gulf of Paria, 1942, LNTS 205, 201.
42 For more, see Proelss (2017a) commentaries to Art. 77, para. 5.
43 US Presidential Proclamation 1667, 28 September 1945.
2.3 Definition of Continental Shelf Within and Beyond 200 nm
29
38 There occurs, thus, a separation between law
and science. The concept of continental shelf adopted in UNCLOS Art. 76 (4) is
different from the scientific one. In fact, the continental shelf as regulated by
UNCLOS is a legal fiction, which justifies its popular nomenclature as “juridical”
or “legal continental shelf”.
39 In UNCLOS definition, the seabed itself has a limited
role; only distance is preferred.
40
Historically, the continental shelf can be portrayed as an infant concept within the
law of the sea, the birth of which dates back to the well-known Truman Proclamation
in 1945. At the outset, however, it should be noted that an in-depth discussion of the
history of continental shelf provisions in the law of the sea escapes the purpose of
this work. For now, some brief commentaries on the most paradigmatic events
leading up to the current continental shelf regime can be of aid in understanding
the main rules, functioning and, eventually, weaknesses and deficiencies of that
regime.
On a brief, panoramic overview on the evolution of the law governing the seabed,
it is no novelty that ground zero was that policy document by the US Presidency.
However, a cardinal precursor of such document was the 1942 Treaty Between the
United Kingdom and Venezuela on the submarine areas of the Gulf of Paria,
41 which
sought to extend coastal rights beyond the traditional 3 nm territorial sea. That
agreement was followed by a UK Council Order stipulating the annexation of the
British part of the Gulf, using a language that strongly indicates British belief of
being entitled to exercise territorial sovereignty over the “submarine areas” of the
Gulf, in the first modern reference to “submarine areas”.
42 As such, the treaty
amounted to the first exercise of sovereignty over the seabed beyond the traditional
length of the territorial sea.
In this context, the 1945 Truman Proclamation, popular term for the “Presidential
Policy of the United States with Respect to Natural Resources of the Subsoil and Sea
Bed of the Continental Shelf”,
43 unilaterally declared the natural resources of the
subsoil and the seabed of the continental shelf to be under the jurisdiction and control
38 See ILA (2002), p. 11. Also, a definition for the phrase “superjacent waters” may be found in a
report by the UN Office for Ocean Affairs and the Law of the Sea (DOALOS) as “the waters lying
immediately above the seabed or deep ocean floor up to the surface”.
39 In this sense, Suarez considers that the “legal continental shelf” was the result of a battle between
the objective and the subjective. During UNCLOS III negotiations, two proposals on the definition
of continental shelf were at the table: the distant-based model and the one based on geology and
geomorphology. A compromise was struck by adopting both models. See Suarez (2008), p. 13. See
also Magnússon (2017), p. 8.
40 Due to the continental shelf’s legal character, in particular the space beyond 200 nm, the Brazilian
Navy refers to it as “juridical continental shelf”, or plataforma continental jurídica, in Portuguese.
See LEPLAC—Plan for the Assessment of the Brazilian Continental Shelf. Available at: https://
www.marinha.mil.br/secirm/leplac. Accessed 30 March 2020.
41 Treaty Between the United Kingdom of Great Britain and Northern Ireland and the Republic of
Venezuela Relating to the Submarine Areas of the Gulf of Paria, 1942, LNTS 205, 201.
42 For more, see Proelss (2017a) commentaries to Art. 77, para. 5.
43 US Presidential Proclamation 1667, 28 September 1945.
2.3 Definition of Continental Shelf Within and Beyond 200 nm
29