Interestingly, the original phrase of “sovereign rights” was crafted during the
1950s by the ILC upon assessing the potential threat to freedoms of the high seas
posed by claims of extended jurisdiction beyond the territorial sea—in particular, the
continental shelf. Such examination resulted not only in draft articles for the first
United Nations Conference on the Law of the Sea (UNCLOS I), but in a series of
detailed commentaries to those articles. Hence, in the commentaries to draft article
68 of the law of the sea, which inspired both Art. 2 of the 1958 CSC and Art.
77 (1) UNCLOS, the Commission justifies the chosen wording with the need to
prevent interpretations prone to infringing a decisive element of the continental shelf
regime, i.e. the “full freedom of the superjacent waters and the airspace above it”.
93
The legal construct of “sovereign rights” emerged from the need to regulate the
uses of recently created maritime spaces, the EEZ and the continental shelf, with one
ambitious mission: to conciliate respect for the principle of permanent sovereignty
over natural resources and the restriction of coastal state powers, in order to prevent
undue interferences with freedom of navigation.
94 The Commission was reluctant to
endorse full sovereignty of coastal states over the seabed and subsoil, out of fear that
such sovereignty might ground excessive sovereignty claims to superjacent waters.
Hence, the Commission decided to employ a softer expression and to devise a new
category of rights, one deriving from state sovereignty but signifying less than full
sovereignty. A right addressing specifically one legal good: natural resources.
Hence, the concept of sovereign rights does not mingle with that of sovereignty, it
is but “an extract of the broader concept of sovereignty”.
95 Firstly, because it relates
uniquely to coastal state’s rights over natural resources of the continental shelf, not
the water column above. As such, the coastal state may not exercise powers that the
idea of sovereignty carries along, such as the unrestricted application of national
laws to that area. Secondly, because the coastal state exercises only a limited
jurisdiction over the continental shelf, its resources and activities thereon.
96 Such
state had, thus, a functional/resource jurisdiction, as well as the jurisdiction to
prevent and punish violations to the law. With the principle of sovereign rights of
coastal states, the ILC believed to achieve a formulation simultaneously compatible
with the principle of freedom of the seas and with the needs of the international
community as a whole.
97
Concerns of the ILC as to the menace of coastal state expansion to freedoms of
the seas were mirrored in negotiations throughout the second half of the twentieth
century. The legal solution was to grant sovereign rights over natural resources,
without curtailing traditional high seas freedoms to navigate, to lay submarine cables
and pipelines and to fly over the zone. The 1958 CSC codified that particular status
93 See generally UN (1956), p. 297.
94 See Ventura (2017), p. 615.
95 Proelss (2017b), p. 424, mn 9.
96 The distinction between sovereignty and jurisdiction in international law and in the law of the sea
is analyzed in further detail in Chap. 4.
97 UN (1956), p. 298.
2.4 Core Principles of the Continental Shelf Regime
41
1950s by the ILC upon assessing the potential threat to freedoms of the high seas
posed by claims of extended jurisdiction beyond the territorial sea—in particular, the
continental shelf. Such examination resulted not only in draft articles for the first
United Nations Conference on the Law of the Sea (UNCLOS I), but in a series of
detailed commentaries to those articles. Hence, in the commentaries to draft article
68 of the law of the sea, which inspired both Art. 2 of the 1958 CSC and Art.
77 (1) UNCLOS, the Commission justifies the chosen wording with the need to
prevent interpretations prone to infringing a decisive element of the continental shelf
regime, i.e. the “full freedom of the superjacent waters and the airspace above it”.
93
The legal construct of “sovereign rights” emerged from the need to regulate the
uses of recently created maritime spaces, the EEZ and the continental shelf, with one
ambitious mission: to conciliate respect for the principle of permanent sovereignty
over natural resources and the restriction of coastal state powers, in order to prevent
undue interferences with freedom of navigation.
94 The Commission was reluctant to
endorse full sovereignty of coastal states over the seabed and subsoil, out of fear that
such sovereignty might ground excessive sovereignty claims to superjacent waters.
Hence, the Commission decided to employ a softer expression and to devise a new
category of rights, one deriving from state sovereignty but signifying less than full
sovereignty. A right addressing specifically one legal good: natural resources.
Hence, the concept of sovereign rights does not mingle with that of sovereignty, it
is but “an extract of the broader concept of sovereignty”.
95 Firstly, because it relates
uniquely to coastal state’s rights over natural resources of the continental shelf, not
the water column above. As such, the coastal state may not exercise powers that the
idea of sovereignty carries along, such as the unrestricted application of national
laws to that area. Secondly, because the coastal state exercises only a limited
jurisdiction over the continental shelf, its resources and activities thereon.
96 Such
state had, thus, a functional/resource jurisdiction, as well as the jurisdiction to
prevent and punish violations to the law. With the principle of sovereign rights of
coastal states, the ILC believed to achieve a formulation simultaneously compatible
with the principle of freedom of the seas and with the needs of the international
community as a whole.
97
Concerns of the ILC as to the menace of coastal state expansion to freedoms of
the seas were mirrored in negotiations throughout the second half of the twentieth
century. The legal solution was to grant sovereign rights over natural resources,
without curtailing traditional high seas freedoms to navigate, to lay submarine cables
and pipelines and to fly over the zone. The 1958 CSC codified that particular status
93 See generally UN (1956), p. 297.
94 See Ventura (2017), p. 615.
95 Proelss (2017b), p. 424, mn 9.
96 The distinction between sovereignty and jurisdiction in international law and in the law of the sea
is analyzed in further detail in Chap. 4.
97 UN (1956), p. 298.
2.4 Core Principles of the Continental Shelf Regime
41