2 Japan and the Law of the Sea: Key Historical …
27
If, on the other hand, the boundaries of the continental shelf on the seabed and the exclusive
economic zone in the superjacent waters are to be parallel, further queries may be raised.
Firstly, does the boundary of the continental shelf have priority over the boundary of the
exclusive economic zone on the ground that its regime came into being first? 26 (p. 107,
paragraphs 1 and 2)
The answer to this question is that “the continental shelf within the EEZ should be
interpreted as being integrated into the EEZ” as indicated by Judge Oda’s Dissenting
Opinion on the Tunisia/Libya Continental Shelf case in 1982:
Even if the jurisdiction of the coastal State is exercised separately for the purpose of exploitation of resources—mineral resources on or under the continental shelf, on the one hand, and
living resources within the exclusive economic zone, on the other—is it feasible to assume
that the area in which such jurisdiction is exercised can or should be different, depending
on what resources are exploited 27 ? […] Despite the resultant vagueness, there is one firm
conclusion which has already been hinted at above, but which now stands fully confirmed by
the identity of Articles 74 and 83, an identity which even the more complex earlier formulae
strove always to maintain. This conclusion is that the principles and rules of international
law applicable to the delimitation of the continental shelf will not be different from those
applicable to the delimitation of the exclusive economic zone. 28
As noted by Judge Oda, the concept of the natural prolongation for the continental
shelf has lost its significance along with the introduction of the standard EEZ distance
of 200 nautical miles.
29 This has become clearer through ICJ decisions.
ICJ decisions indicate that although no specific criterion has been set for continental shelf delimitation, the median line is one of the criteria for two States with
opposite coasts. In other words, the natural prolongation theory is not decisive for
continental shelf delimitation, and its influence has been waning throughout subsequent ICJ decisions. As the notion of EEZ is now normatively established, the notion
of continental shelf covered by the 200 nautical mile distance criterion has been
subsumed into the EEZ regime.
30 Under such circumstances, the natural prolongation theory cannot be used to bring about any equitable solution to delimitation of a
maritime boundary in waters that are less than 400 nautical miles wide between two
States with opposite coasts. Thus, for the disputes between two States with opposite
26 Oda (1979).
27 I.C.J. Reports 1982, Dissenting Opinion of Judge Oda, paragraph 126.
28 Ibid., paragraph 145. Judge Evensen, in his Dissenting Opinion, felt that it was, “hardly conceivable in the present case to draw a different line of delimitation for the exclusive economic zone and
for the continental shelf.” Cf . I.C.J. Reports 1982, Dissenting Opinion of Judge Evensen, paragraph
10.
29 However, in his dissenting opinion for the Case concerning Maritime Delimitation in the Area
between Greenland and Jan Mayen (1993), Judge Oda seems to have thought it possible to draw
different lines for the EEZ and the continental shelf, meaning that he was in favour of drawing not
a singular line, but distinct lines for the EEZ and the continental shelf. Cf . I.C.J. Reports 1993,
Dissenting Opinion of Judge Oda, paragraphs 72–74.
30 The ICJ, however, concludes, “this does not mean that the concept of the continental shelf has been
absorbed by that of the exclusive economic zone; it does, however, signify that greater importance
must be attributed to elements, such as distance from the coast, which are common to both concepts.”
I.C.J. Reports 1985, p. 33, paragraph 33.
27
If, on the other hand, the boundaries of the continental shelf on the seabed and the exclusive
economic zone in the superjacent waters are to be parallel, further queries may be raised.
Firstly, does the boundary of the continental shelf have priority over the boundary of the
exclusive economic zone on the ground that its regime came into being first? 26 (p. 107,
paragraphs 1 and 2)
The answer to this question is that “the continental shelf within the EEZ should be
interpreted as being integrated into the EEZ” as indicated by Judge Oda’s Dissenting
Opinion on the Tunisia/Libya Continental Shelf case in 1982:
Even if the jurisdiction of the coastal State is exercised separately for the purpose of exploitation of resources—mineral resources on or under the continental shelf, on the one hand, and
living resources within the exclusive economic zone, on the other—is it feasible to assume
that the area in which such jurisdiction is exercised can or should be different, depending
on what resources are exploited 27 ? […] Despite the resultant vagueness, there is one firm
conclusion which has already been hinted at above, but which now stands fully confirmed by
the identity of Articles 74 and 83, an identity which even the more complex earlier formulae
strove always to maintain. This conclusion is that the principles and rules of international
law applicable to the delimitation of the continental shelf will not be different from those
applicable to the delimitation of the exclusive economic zone. 28
As noted by Judge Oda, the concept of the natural prolongation for the continental
shelf has lost its significance along with the introduction of the standard EEZ distance
of 200 nautical miles.
29 This has become clearer through ICJ decisions.
ICJ decisions indicate that although no specific criterion has been set for continental shelf delimitation, the median line is one of the criteria for two States with
opposite coasts. In other words, the natural prolongation theory is not decisive for
continental shelf delimitation, and its influence has been waning throughout subsequent ICJ decisions. As the notion of EEZ is now normatively established, the notion
of continental shelf covered by the 200 nautical mile distance criterion has been
subsumed into the EEZ regime.
30 Under such circumstances, the natural prolongation theory cannot be used to bring about any equitable solution to delimitation of a
maritime boundary in waters that are less than 400 nautical miles wide between two
States with opposite coasts. Thus, for the disputes between two States with opposite
26 Oda (1979).
27 I.C.J. Reports 1982, Dissenting Opinion of Judge Oda, paragraph 126.
28 Ibid., paragraph 145. Judge Evensen, in his Dissenting Opinion, felt that it was, “hardly conceivable in the present case to draw a different line of delimitation for the exclusive economic zone and
for the continental shelf.” Cf . I.C.J. Reports 1982, Dissenting Opinion of Judge Evensen, paragraph
10.
29 However, in his dissenting opinion for the Case concerning Maritime Delimitation in the Area
between Greenland and Jan Mayen (1993), Judge Oda seems to have thought it possible to draw
different lines for the EEZ and the continental shelf, meaning that he was in favour of drawing not
a singular line, but distinct lines for the EEZ and the continental shelf. Cf . I.C.J. Reports 1993,
Dissenting Opinion of Judge Oda, paragraphs 72–74.
30 The ICJ, however, concludes, “this does not mean that the concept of the continental shelf has been
absorbed by that of the exclusive economic zone; it does, however, signify that greater importance
must be attributed to elements, such as distance from the coast, which are common to both concepts.”
I.C.J. Reports 1985, p. 33, paragraph 33.