of the water column above the continental shelf, providing that “the rights of the
coastal state over the continental shelf do not affect the legal status of the superjacent
waters as high seas, or that of the air space above those waters”.
98 The equivalence
of the superjacent waters with the high seas was later dropped, following the
appearance of the EEZ, a sui generis zone which is neither territorial sea nor high
seas. Thus, UNCLOS adopted in its Art. 78 (1), almost the same wording as the
CSC, except of the high seas part.
99 Under UNCLOS, superjacent waters to the
continental shelf either come under the regime of the EEZ (for the portion up to
200 nm) or the high seas (for the waters beyond that).
That the status of superjacent waters not be confused with sovereign rights over
the continental shelf was a guarantee not only for maritime powers, but also
landlocked and geographically disadvantaged states, as to their freedom to navigate
the oceans.
100 Such freedom was, furthermore, secured by the provision contained in
Art. 78 (2) UNCLOS, on the rights of other states in the waters above the shelf,
according to which coastal states “must not infringe or cause any unjustifiable
interference with navigation and other rights and freedoms of other States as
provided for in this Convention” (emphasis added). The choice for the expression
“must not” was no coincidence, as it accentuates the unambiguous character of the
obligation, as wished by the ILC. When commenting upon the relationship between
the continental shelf regime and the principle of freedom of the seas, the ILC was of
98 1958 CSC, Art. 3, paragraph 1. Since the waters above the seafloor within national jurisdiction
were, back then, considered as high seas, other freedoms did also apply, namely to navigate, to fish,
to conserve living resources and to conduct “fundamental oceanographic or other scientific
research”. Coastal states were to respect those activities and not to unjustifiably interfere with
them, in consistency with Art. 5, paragraph 1, CSC.
99 UNCLOS Art. 78, paragraph 1, on the legal status of the superjacent waters and air space and the
rights and freedoms of other States: “The rights of the coastal State over the continental shelf do not
affect the legal status of the superjacent waters or of the air space above those waters”.
100 UNCLOS does not make any prejudice among coastal and land-locked states, having made the
high seas open to both categories and awarded freedoms therein for both (Art. 87, paragraph 1).
Besides, every state, whether coastal or land-locked, has the right to sail ships flying its flags, in line
with Art. 90 UNCLOS, on the right to navigation. According to the Virginia Commentaries, the
inclusion of paragraph 2 to Art. 78 “addressed the concerns of states – in particular landlocked states
and geographically disadvantaged states – that the extension of coastal state jurisdiction over the
continental shelf would infringe on the rights and freedoms granted to those states under other
provisions of the Convention”. Virginia Commentaries, at 907. It is perhaps exaggerated to credit
pressure towards the preservation of the high seas freedoms particularly to land-locked states, as
maritime powers (which are coastal states) have also displayed much concern as to the possibility of
having a limited set of freedoms in the high seas. For that reason, the United States Proclamation
expressly preserved the legal status of the superjacent waters to the continental shelf. Later on,
during the 1960s, the United States Navy created the Freedom of Navigation Program (FON), in
order precisely to counter bold jurisdictional assertions, mostly by developing coastal states, in the
years preceding UNCLOS III negotiations. Chapter 4 of this work addresses the expansion of
coastal state jurisdiction in further depth.
42
2 The General International Legal Regime of the Continental Shelf
coastal state over the continental shelf do not affect the legal status of the superjacent
waters as high seas, or that of the air space above those waters”.
98 The equivalence
of the superjacent waters with the high seas was later dropped, following the
appearance of the EEZ, a sui generis zone which is neither territorial sea nor high
seas. Thus, UNCLOS adopted in its Art. 78 (1), almost the same wording as the
CSC, except of the high seas part.
99 Under UNCLOS, superjacent waters to the
continental shelf either come under the regime of the EEZ (for the portion up to
200 nm) or the high seas (for the waters beyond that).
That the status of superjacent waters not be confused with sovereign rights over
the continental shelf was a guarantee not only for maritime powers, but also
landlocked and geographically disadvantaged states, as to their freedom to navigate
the oceans.
100 Such freedom was, furthermore, secured by the provision contained in
Art. 78 (2) UNCLOS, on the rights of other states in the waters above the shelf,
according to which coastal states “must not infringe or cause any unjustifiable
interference with navigation and other rights and freedoms of other States as
provided for in this Convention” (emphasis added). The choice for the expression
“must not” was no coincidence, as it accentuates the unambiguous character of the
obligation, as wished by the ILC. When commenting upon the relationship between
the continental shelf regime and the principle of freedom of the seas, the ILC was of
98 1958 CSC, Art. 3, paragraph 1. Since the waters above the seafloor within national jurisdiction
were, back then, considered as high seas, other freedoms did also apply, namely to navigate, to fish,
to conserve living resources and to conduct “fundamental oceanographic or other scientific
research”. Coastal states were to respect those activities and not to unjustifiably interfere with
them, in consistency with Art. 5, paragraph 1, CSC.
99 UNCLOS Art. 78, paragraph 1, on the legal status of the superjacent waters and air space and the
rights and freedoms of other States: “The rights of the coastal State over the continental shelf do not
affect the legal status of the superjacent waters or of the air space above those waters”.
100 UNCLOS does not make any prejudice among coastal and land-locked states, having made the
high seas open to both categories and awarded freedoms therein for both (Art. 87, paragraph 1).
Besides, every state, whether coastal or land-locked, has the right to sail ships flying its flags, in line
with Art. 90 UNCLOS, on the right to navigation. According to the Virginia Commentaries, the
inclusion of paragraph 2 to Art. 78 “addressed the concerns of states – in particular landlocked states
and geographically disadvantaged states – that the extension of coastal state jurisdiction over the
continental shelf would infringe on the rights and freedoms granted to those states under other
provisions of the Convention”. Virginia Commentaries, at 907. It is perhaps exaggerated to credit
pressure towards the preservation of the high seas freedoms particularly to land-locked states, as
maritime powers (which are coastal states) have also displayed much concern as to the possibility of
having a limited set of freedoms in the high seas. For that reason, the United States Proclamation
expressly preserved the legal status of the superjacent waters to the continental shelf. Later on,
during the 1960s, the United States Navy created the Freedom of Navigation Program (FON), in
order precisely to counter bold jurisdictional assertions, mostly by developing coastal states, in the
years preceding UNCLOS III negotiations. Chapter 4 of this work addresses the expansion of
coastal state jurisdiction in further depth.
42
2 The General International Legal Regime of the Continental Shelf