EMBA§§Y OF NICARAGUA
THE HAGUE
RESPONSE TO JUDGE BENNOUNA'S QUESTION
THE QUESTION
«Les ll·ègRe psoséesà l'article 76 de la convention des Nations Unies de 1982 sur le droit
diela mer, pour la détermination diela limite extérieure du plateau continental au-delà
des 200 milles marins, peuvent-elles être considérées aujourd'hui comme ayant le
caractère de règles diedroit international coutumier »?
THE RESPONSE
Factual background
1. Nicaragua considers that the definition of the continental shelf set out in Aliicle 76 (1) -
(7) of the 1982 United Nations Convention on the Law of the Sea ('UNCLOS' or 'the
Convention') has the status of a rule of customary international law, and not only of a rule
oftreaty law. Nicaragua holds this view for the following reasons:
2. The automatic appurtenance of the continental shelf was established by the Comi in the
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North Sea Continental Shelf cases. The Court said:
"19. ...the doctrine of the just and equitable share appears to be wholly at variance with what
the Court entertains no doubt the most fundamental of ali the rules of law relating to the
continental shelf, enshrined in Article 2 the 1958 Geneva Convention, though quite
independent of it,-namely that the rights of the coastal State in respect of the area of
continental shelf that constitutes a natural prolongation of its land territory into and under the
sea existipso facto and ab initia, by virtue of its sovereignty over the land, and as an
extensionof it in an exercise of sovereign rights for the purpose of exploring the seabed and
exploiting its natural resources.ort, there is here an inherent right."
3. The Court explicated this principle, painting out that the greater proximity of an area of
seabed to one State rather than another had no necessary connection with the entitlement
to that area,3and explaining that:
ICJ Reports 1969, p. 3.
2
idem, p. 3, at paragraph 19.
3 idem, p. 3, at paragraphs 39-42.
1 lEMJRASSY OF NJ[CARAGUA
THE HAGUE
"43. More fundamental than the notion of proximity appears to be the principle-constantly
relied upon by all the Parties-of the natural prolongation or continuation of the land territory
or domain, or land sovereigntyof the coastal State, into and under the high seas, via the bed of
its territorial sea which is under the full sovereignty of that State. There are various ways of
formulating this principle, but the underlying idea, namely of an extension of something
a!ready possessed, is the same, and it is this idea of extension which is, in the Court'sopinion,
determinant. Submarine areas do not really appertain to the coastal State because-or not only
because-they are near it. They are near itf course; but this would not suffice to confer title,
any more than, according to a well-established principlef law recognized by both sides in the
present case, mere proximity confers perse title to land territory. What confers the ipso jure
title which international law attributes to the coastal State in respect of its continental shelf, is
the fact that the submarine areas concemed may be deemed to be actually part of the telTitory
over which the coastal State already bas dominion, -in the sense that, although covered with
water, they are a prolongation or continuationf that territory, an extension of it under the sea.
From this it would follow that whenever a given submarine area does not constitute a natural -
or the most natural - extension of the land territory of a coastal State, even though that area
may be closer to it than it is to the territoryof any other State, it cannot be regarded as
appertaining to that State;-or at !east it cannot be so regarded in the face of a competing claim
by a State of whose land territory the submarine area concemed is to be regarded as a natural
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extension, even if it is less close to it."
4. The doctrine of automatic appurtenance supposes that there is a determinable area to
which the doctrine applies. That area was defined by the Court in te1ms of the natural
prolongation of the State's land territory under the sea. That concept was regarded by the
Court as a rule of customary international law reflected or crystallized in Articles 1-3 of
the 1958 Convention on the Continental Shelf. 5
5. The Third United Nations Conference on the Law of the Sea ('the Conference') took up
the concept of 'natural prolongation' as one of two bases for the definition of the
continental shelf, the other being a distance criterion. Developments in the Conference are
summarized in volume II of the Virginia Commentary, at pp. 825-899.
6. The key points that are evident from the record of the Conference are:
i. the limits of the continental shelf were regarded as insufficiently precisely
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defmed in 1969;
ii. the Conference devoted sustained and focused effort to the task of defining
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the limits ofthe continental shelf;
4
idem, p. 3, at paragraph 43.
idem, p. 3, atparagraph 63.
See UNGA resolution 2754A (XXIV), 15 December 1969.
2 EMJBASSYOJFNKCARAG1UA
THE HAGUE
iii. throughout its work the Conference distinguished between, on the one hand,
the 'continental shelf or 'natural prolongation' or 'continental mm·gin' or
'continental shelf, slope and rise', which is under natio8al jurisdiction, and on the
other handthe deep sea-bed beyond nationaljurisdiction;
iv. the tenns 'natural prolongation' and 'continental margin' and 'continental
shelf, slope and rise' were used without any clear distinction being drawn between
them to describe the 'physical' submarine area over which national jurisdiction exists
(as opposedto the area defined by distance from the shore).
v. In 1975, seven years before the Conference adopted its final text, it was
proposed by the USA that the limits of the continental mm·ginshould be defined by
either (a) a fonnula linked to the nature of the seabed sedimentmy rocks, or (b) fixed
points not more than 60 mn from the foot of the continental slope; and in 1976 that
approac10was given clear and detailed definition in a draft Article proposed by
Ireland.
vi. the alternative definitions in the A1i76 (4) were intended to enable States to
choose the 'foot-of-slope ('FOS')+ 60 mn' line in definition (b) if they wished, for
example where the geological data necessmy for the geological definition (a) were
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not available;
vii. the A1iicle 76 (4) alternative definitions were included by consensus in
subsequent drafts of the Convention, and the final text was adopted in 1982 by a vote
of 130to 4 with 17abstentions.
7. The 'FOS+ 60nm' definition, which is the applicablepart of the definition in the present
case, was included (alongwith the alternative 'thicknessof sedimentary rocks' definition)
in the UNCLOS as Article 76(4)(a)(ii). In 1982, 119 delegations (including Colombia)
signed the Convention. As of 10 May 2012, 162 States or entities are Parties to the
Convention.
7
Virginia Commentmy, paragraphs VI.6-VI.14, 76.1-76.17.
idem.
9 Virginia Commentmy, p. 848, paragraph 76.6.
10 idem, p. 852, paragraph 76.7.
11 idem, pp. 855-857, paragraph 76.8-76.10.
3 EMBA§§Y OF NICARAGUA
THE HAGUE
Legal argument
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8. The purpose of Aliicle 76, pa1iicularly paragraphs (4)-(7), is to limit and give greater
precision to the definition of the continental shelf appertaining to each coastal State.
9. It is universally accepted that each coastal State has an entitlement to continental shelf
rights over the natural prolongation of its land tenitory to the outer edge of its continental
margin, and there is in State practice no other definition of the continental margin that
contradicts or competes with the definition set out in Article 76 paragraphs (4)-(7).
10. State practice shows that this definition, and no other, is generally supported. The website
of the UN Department for Ocean Affairs and the Law of the Sea carries the legislation of
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151 States. Of those 151 States, approximately 90 have legislation relevant to the
continental shelf and its outer limits: the approximation is necessa1·ybecause sorne
references to the continental shelf are oblique, and sornelaws are not readily available.
11. Ofthose 90 orso States, sorne 6 merely provide for delimitation oftheir continental shelf
on the basis of agreements with neighbouring States (eg Croatia, Bulgaria, Estonia). It
appears that approximately 50 of the remaining States adopt in their domestic law a
definition of the continental shelf that is in line with 76(1) UNCLOS, refening to a
continental ma1·gin;sorne go further in defrning that margin in line with 76(3) UNCLOS;
sorne refer to the provisions of Art 76 UNCLOS in general terms; and at least 3, including
a State that has neither signed nor ratified the UNCLOS (Ecuador), refer to further
detailed criteria under the provisions of Article 76 (5)- (6).
12. A further 19 States adhere to the '200m isobath + exploitability' criterion used in Article
1 of the 1958 Continental Shelf Convention or simply to an exploitability criterion; but 17
of those have signed or ratified UNCLOS, and sorne or all of them may either have
adopted legislation to implement UNCLOS domestically, or have a legal system which
gives direct effect to treaties. Further, 8 of the 19have made submissions to the CLCS.
13. A further 16 States limit their assertions of jurisdiction over the continental shelf to 200
nm. But 14 ofthose have signed or ratified UNCLOS, and sorne or all of them may either
have adopted legislation to implement UNCLOS domestically, or have a legal system
12 See Ireland's comments introducing the Irish proposai at the Conference: Virginia Commentary, pp.
855-856, paragraph 76.9.
13 http://www.un.org/Depts/los/LEGISLA TIONANDTREA TIES/index.htm.
4 JEMBASSY OJFNICARAGUA
THJEHAGUJE
which gives direct effect to treaties. Fmther, 7 of the 16 have made submissions to the
CLCS.
14. The conclusion is that more than 80 States of the 90 that have continental shelflegislation
appear to accept the definition in Article 76 (4) - (7) either explicitly in their laws or
implicitly by their acceptance of the UNCLOS.
15. Finally, of all remaining States that have no (published) legislation on the continental
shelf, 28 have made submissions to the CLCS, which indicates their acceptance of the
provisions in Article 76 (4)- (7).
16. Even non-Parties to UNCLOS have explicitly accepted this definition. For exan1ple, in
1987 the USA stated that:
"... the proper defmition and means of delimitation in international law are reflected in Article
76 of the 1982 United Nations Convention on the Law of the Sea. The United States has
exercised and shall continue to exercise jurisdiction over its continentalordance
with and to the full extent permitted by international law as reflected in Article 76, paragraphs
(1), (2) and (3). At such time in the future that it is determined desirable to delimit the outer
lirnit of the continental shelf of the United States beyond two hundred nautical miles from the
baseline fi·omwhich the te1Titorialsea is measured, such delimitation shaH be can-ied out in
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accordance with paragraphs (4), (5), (6) and (7)."
It will be noted that the USA does not consider compliance with Alticle 76(8) to be
necessary in this context.
17. The implementation of article 76 has been the subject of the annual United Nations
General Assembly Resolutions on oceans and law of the sea. The Resolutions underline
the significanceof article 76 for the international community at large. The Resolution of
December 2011 observes among others:
"Noting the importance of the delineation of the outer limits of the continental shelf beyond
200 nautical miles and that it is in the broader interest of the international community that
coastal States with a continental shelf beyond 200 nautical miles submit information on the
outer limits of the continental shelf beyond 200 nautical miles to the Commission on the
Limits of the Continental Shelf ("the Commission"), and welcoming the submissions to the
Commission by a considerable number of States Parties on the outer limits oftheir continental
shelfbeyond200 nautical miles, that the Commission has continued to fulfil its role, including
14 J. Ashley Roach aR~b We.Smtith, United States Responses to Excessive Maritime Claims, (2nded.,
1996), pp.01-202.
5 JEMBASSY OF NICARAGUA
'fHJE HAGUJE
of making recommendations to 15astal States, and that the summaries of recommendations are
being made publiclyavailable."
18. Further, non-UNCLOS-Party States also have a role in the worlcof the Commission: they
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are informed of submissions and have the right to comment upon them. The following
States have availed themselves of the possibility to submit comments, while not being a
Party to the Convention: Canada (on the Submission of the Russian Federation); Denmark
(on the Submission of the Russian Federation); Peru (on the Preliminary Information
submitted by Chile); Timor-Leste (on the submission of Australia); the United States (on
the submissions of Argentina, Australia, Brazil, Cuba, Japan and the Russian Federation)
and Venezuela (on the submissions ofBarbados and Guyana). All indications point to the
conclusion that the States Parties, non-Party States and the Commission consider that
Al.iicle76 paragraphs (4)-(7) are entirely consistent with customary international law.
19. The very wide ratification ofUNCLOS, with the result that Al.iicle76 paragraphs (4)-(7)
became binding for States Pmiies as a matter of treaty law, "does not mean that they
cease to exist m1dto apply as principles of customary law, even as regards countries that
are parties" 17to the UNCLOS.
20. When a State claims to establish or invoke a specifie legal institution, such as a
continental shelf or EEZ or contiguous zone, it must be presumed to do so in the terms in
which that institution is established and 1or generally understood in international law. A
fortiori, when customm·yinternational law automatically attributes a continental shelf to a
State, it necessarily does so within the meaning that customary international law gives to
the concept of the continental shelf.
15 UNGA Resolution A/RES/66/231 adopted on 24 December 2011 (available at http://daccess-dds
ny.un.org/doc/UNDOC/GEN/Nll/472/68/PDF/N1147268.pdf?OpenElement).
16
Rule 50 of the Rules of Procedure of the CLCS specifies that: "The Secretary-General shall, through
the appropriate channels, promptlynoti:fythe Commission and ali States Members of the United Nations,
including States Parties to the Convention, of the receipt of the submission, and make public the executive
summary including ali charts and coordinates referred to in paragraph 9.1.4 of the Guidelines and contained in
that summary, upon completion of the translation of the executive summary referred to in rule 47, paragraph 3."
(emphasis added) According to the modus operandi of the Commission, a State in presenting its submission
shall comment on "any note verbale from other States regarding the data reflected in the executive summary
including ali charts and coordinatesmade public by the Secretary-General in accordance with rule 50": CLCS
Rules, Annex III, section II.2(a)(v).
17
Nicaragua v United States of America, ICJ Reports 1984, p. 392, paragraph 73.
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THJEHAGUJE
21. The definition in Article 76 is the only definition that has general support in international
law. There is no indication that States have sought to create any alternative or competing
definition of the continental shelf.
IN CONCLUSION,
22.For the reasons given above, the Republic of Nicaragua considers that UNCLOS Article
76 paragraphs (1) to (7) have the statusy international law.
The Hague,1 May 2012.
,//:__/r;~~~~---
Carlos J.ARGÜELLO GOMEZ
Agent
Republic ofNicaragua
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Written reply of the Republic of Nicaragua to the question put by Judge Bennouna at the public sitting held on the afternoon of 4 May 2012