26
S. Sakamoto
to establish one uninterrupted boundary line delimiting the various -partially coincidentzones of maritime jurisdiction appertaining to them. 24
At least, China, which holds to the natural prolongation theory, hopes to delimit
only its continental shelf boundary. With the 200 nautical mile EEZ regime having
been established, however, it may be doubted whether it is pragmatic to delimit only
a continental shelf boundary while shelving the EEZ boundary delimitation. On the
EEZ, Paragraph 3 of Article 56 of UNCLOS provides that, “The rights set out in this
article with respect to the sea-bed and subsoil shall be exercised in accordance with
Part VI.” Citing the paragraph, some Chinese experts argue that the continental shelf
regime takes precedence over the EEZ regime, as far as the seabed and subsoil are
concerned, and that the natural prolongation theory has priority over any other theory
for delimitation of boundaries.
25 But this paragraph, like Paragraph 8 of Article 76,
means that Part VI should be given priority with regard to the continental shelf limit
extension and other problems peculiar to the continental shelf regime, rather than
to boundary delimitation. Otherwise, it would be meaningless for UNCLOS to have
identical provisions on EEZ and continental shelf delimitation (Articles 74 and 83)
as noted above. In fact, Paragraph 10 of Article 76 provides that, “The provisions
of this article are without prejudice to the question of delimitation of the continental
shelf between States with opposite or adjacent coasts.”
While Japan has EEZ delimitation as well as continental shelf delimitation in
mind, China sticks to continental shelf delimitation. Consequently, how is one
to interpret the significance of UNCLOS adopting the EEZ and continental shelf
regimes in parallel?
The problem emerged at a relatively early stage. Former ICJ Judge Shigeru Oda
made the following points:
The first question which springs to mind is whether the seabed within 200-miles from the
coast should be incorporated in the regime of the exclusive economic zone or whether it
should come under a separate regime of the continental shelf. (p. 106)
A question which may be asked is whether it is legitimate to suggest two separate regimes for
the same offshore areas, i.e., the economic zone for the superjacent waters and the continental
shelf for the seabed, as a result of drawing separate boundaries for each between the same
neighboring countries. Is it permissible to have the seabed as part of the continental shelf of
one State while the superjacent waters above it are under the jurisdiction of the other State
as part of the latter’s economic zone?
24 I.C.J. Reports 2001, p. 93, paragraph 173. In the judgment of the Case concerning Maritime
Delimitation in the Area between Greenland and Jan Mayen, the ICJ recognised no existence of
agreements on the maritime boundary between the parties concerned, and separately examined
the effect of Article 6 of the Convention on the Continental Shelf for delimiting boundaries of
continental shelves and that of customary international law for fishery zones. Cf . I.C.J. Reports
1993, paragraph 41. Some analyse this judgment and criticise the ICJ for missing an opportunity to
pronounce on the process toward adopting a singular boundary for continental shelf and EEZ, even
when the parties concerned did not ask it to do so. Cf. M.D. Evans, “Case Concerning Maritime
Delimitation in the Area between Greenland and Jan Mayen (Denmark vs. Norway),” International
and Comparative Law Quarterly, Vol. 43 (1994), p. 702.
25 For example, Gao (2010), Cai (2006).
S. Sakamoto
to establish one uninterrupted boundary line delimiting the various -partially coincidentzones of maritime jurisdiction appertaining to them. 24
At least, China, which holds to the natural prolongation theory, hopes to delimit
only its continental shelf boundary. With the 200 nautical mile EEZ regime having
been established, however, it may be doubted whether it is pragmatic to delimit only
a continental shelf boundary while shelving the EEZ boundary delimitation. On the
EEZ, Paragraph 3 of Article 56 of UNCLOS provides that, “The rights set out in this
article with respect to the sea-bed and subsoil shall be exercised in accordance with
Part VI.” Citing the paragraph, some Chinese experts argue that the continental shelf
regime takes precedence over the EEZ regime, as far as the seabed and subsoil are
concerned, and that the natural prolongation theory has priority over any other theory
for delimitation of boundaries.
25 But this paragraph, like Paragraph 8 of Article 76,
means that Part VI should be given priority with regard to the continental shelf limit
extension and other problems peculiar to the continental shelf regime, rather than
to boundary delimitation. Otherwise, it would be meaningless for UNCLOS to have
identical provisions on EEZ and continental shelf delimitation (Articles 74 and 83)
as noted above. In fact, Paragraph 10 of Article 76 provides that, “The provisions
of this article are without prejudice to the question of delimitation of the continental
shelf between States with opposite or adjacent coasts.”
While Japan has EEZ delimitation as well as continental shelf delimitation in
mind, China sticks to continental shelf delimitation. Consequently, how is one
to interpret the significance of UNCLOS adopting the EEZ and continental shelf
regimes in parallel?
The problem emerged at a relatively early stage. Former ICJ Judge Shigeru Oda
made the following points:
The first question which springs to mind is whether the seabed within 200-miles from the
coast should be incorporated in the regime of the exclusive economic zone or whether it
should come under a separate regime of the continental shelf. (p. 106)
A question which may be asked is whether it is legitimate to suggest two separate regimes for
the same offshore areas, i.e., the economic zone for the superjacent waters and the continental
shelf for the seabed, as a result of drawing separate boundaries for each between the same
neighboring countries. Is it permissible to have the seabed as part of the continental shelf of
one State while the superjacent waters above it are under the jurisdiction of the other State
as part of the latter’s economic zone?
24 I.C.J. Reports 2001, p. 93, paragraph 173. In the judgment of the Case concerning Maritime
Delimitation in the Area between Greenland and Jan Mayen, the ICJ recognised no existence of
agreements on the maritime boundary between the parties concerned, and separately examined
the effect of Article 6 of the Convention on the Continental Shelf for delimiting boundaries of
continental shelves and that of customary international law for fishery zones. Cf . I.C.J. Reports
1993, paragraph 41. Some analyse this judgment and criticise the ICJ for missing an opportunity to
pronounce on the process toward adopting a singular boundary for continental shelf and EEZ, even
when the parties concerned did not ask it to do so. Cf. M.D. Evans, “Case Concerning Maritime
Delimitation in the Area between Greenland and Jan Mayen (Denmark vs. Norway),” International
and Comparative Law Quarterly, Vol. 43 (1994), p. 702.
25 For example, Gao (2010), Cai (2006).