outer continental shelf. That is the reigning perception amid petroleum, gas, and
mining industry representatives that more clarity and legal certainty must be reached
before private and state-owned petroleum companies inject massive investments into
projects in lease sites beyond 200 nm. In a speech before the United States Senate,
Thomas Donoghue quoted a note by ExxonMobil, which states that “legal certainty
in the property rights being explored and developed” precedes investments.
30 Sure, a
good deal of certainty with regard to the continental shelf beyond 200 nm is to be
found in UNCLOS’, particularly the legal procedures established for the delineation
and delimitation of outer continental shelves around the world. However, it is the
case to assess with precision which are the implications of such outer continental
shelf delineation both for the coastal state and for the international community. This
chapter aims at shedding initial light on that issue.
3.2 Formulae to Precise the Outer Edge of the Continental
Margin and the Outer Limits of the Continental Shelf
The adoption of UNCLOS meant the creation of a maritime space with a variable
geographic formation, the continental shelf. In fact, following pressures from broadmargin states, the Convention stipulates that the continental shelf may extend
beyond the default 200 nm, provided the extension respects a set of complex
scientific formulae, aimed at assessing the geological affinity of the continental
shelf between seabed and landmass, as well as at limiting the outer continental
shelf limits of extreme-margin states, such as Canada, Australia and New Zealand.
For that, it was necessary to elaborate a juridical definition which, in order to be
accepted, had to be based on technical-scientific criteria, which culminated in Art.
76 UNCLOS, a piece of exceptional law-making virtuosity.
31 To monitor the
implementation of the established criteria, the CLCS was created.
32
Upfront, it is worth noting that the basic principles governing the continental
shelf within 200 nm are valid for the portion of the seabed extending beyond 200 nm,
pursuant to the theory of the “single shelf”.
33 However, the set of rules applicable to
the outer continental shelf, hereinafter named the “outer continental shelf regime”,
rests on specific legal backbones, which vary significantly from those basic principles. Firstly, the outer continental shelf depends on the declaration of the respective
30 Donoghue (2012).
31 That is the opinion of Luis Soares, shared by this author. See Soares (2014), p. 301.
32 Art. 76, paragraph 8; and Annex II, UNCLOS, on the Commission on the Limits of the
Continental Shelf.
33 The theory of the single continental shelf was discussed during the negotiations of the Convention
and has recently been affirmed by international jurisprudence. See Dispute concerning delimitation
of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/
Myanmar), Order of 14 March 2012, ITLOS Reports 2011, 4.
3.2 Formulae to Precise the Outer Edge of the Continental Margin and the. . .
53
mining industry representatives that more clarity and legal certainty must be reached
before private and state-owned petroleum companies inject massive investments into
projects in lease sites beyond 200 nm. In a speech before the United States Senate,
Thomas Donoghue quoted a note by ExxonMobil, which states that “legal certainty
in the property rights being explored and developed” precedes investments.
30 Sure, a
good deal of certainty with regard to the continental shelf beyond 200 nm is to be
found in UNCLOS’, particularly the legal procedures established for the delineation
and delimitation of outer continental shelves around the world. However, it is the
case to assess with precision which are the implications of such outer continental
shelf delineation both for the coastal state and for the international community. This
chapter aims at shedding initial light on that issue.
3.2 Formulae to Precise the Outer Edge of the Continental
Margin and the Outer Limits of the Continental Shelf
The adoption of UNCLOS meant the creation of a maritime space with a variable
geographic formation, the continental shelf. In fact, following pressures from broadmargin states, the Convention stipulates that the continental shelf may extend
beyond the default 200 nm, provided the extension respects a set of complex
scientific formulae, aimed at assessing the geological affinity of the continental
shelf between seabed and landmass, as well as at limiting the outer continental
shelf limits of extreme-margin states, such as Canada, Australia and New Zealand.
For that, it was necessary to elaborate a juridical definition which, in order to be
accepted, had to be based on technical-scientific criteria, which culminated in Art.
76 UNCLOS, a piece of exceptional law-making virtuosity.
31 To monitor the
implementation of the established criteria, the CLCS was created.
32
Upfront, it is worth noting that the basic principles governing the continental
shelf within 200 nm are valid for the portion of the seabed extending beyond 200 nm,
pursuant to the theory of the “single shelf”.
33 However, the set of rules applicable to
the outer continental shelf, hereinafter named the “outer continental shelf regime”,
rests on specific legal backbones, which vary significantly from those basic principles. Firstly, the outer continental shelf depends on the declaration of the respective
30 Donoghue (2012).
31 That is the opinion of Luis Soares, shared by this author. See Soares (2014), p. 301.
32 Art. 76, paragraph 8; and Annex II, UNCLOS, on the Commission on the Limits of the
Continental Shelf.
33 The theory of the single continental shelf was discussed during the negotiations of the Convention
and has recently been affirmed by international jurisprudence. See Dispute concerning delimitation
of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/
Myanmar), Order of 14 March 2012, ITLOS Reports 2011, 4.
3.2 Formulae to Precise the Outer Edge of the Continental Margin and the. . .
53