ARTICLE 6

1. Where the same Continental Shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the Continental Shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

2. Where the same Continental Shelf is adjacent to the territories of two adjacent States, the boundary of the Continental Shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

3. In delimiting the boundaries of the Continental Shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.

ARTICLE 7

The provisions of these articles shall not prejudice the right of the coastal State to exploit the subsoil by means of tunneling, irrespective of the depth of water above the subsoil.

ARTICLE 8

This Convention shall, until October 31, 1958, be open for signature by all States Members of the United Nations, or of any of the specialized agencies, and by any other State invited by the General Assembly to become a Party to the Convention.

ARTICLE 9

This Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

ARTICLE 10

This Convention shall be open for accession by any States belonging to any of the categories mentioned in article 8. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

ARTICLE 11

1. This Convention shall come into force on the 30th day following the date of deposit of the 22d instrument of ratification or accession with the SecretaryGeneral of the United Nations.

2. For each State ratifying or acceding to the Convention after the deposit of the 22d instrument of ratification or accession, the Convention shall enter into force on the 30th day after deposit by such State of its instruments of ratification or accession.

ARTICLE 12

1. At the time of signature, ratification, or accession, any State may make reservations to articles of the Convention other than to articles 1 to 3, inclusive. 2. Any contracting State making a reservation in accordance with the preceding paragraph may at any time withdraw the reservation by a communication to that effect addressed to the Secretary-General of the United Nations.

ARTICLE 13

1. After the expiration of a period of 5 years from the date on which this Convention shall enter into force, a request for the revision of this Convention may be made at any time by any contracting party by means of a notification in writing addressed to the Secretary-General.

2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such request.

ARTICLE 14

The Secretary-General of the United Nations shall inform all States Members of the United Nations and the other States referred to in article 8:

(a) Of signatures to this Convention and of the deposit of instruments of ratification or accession, in accordance with articles 8, 9, and 10.

(b) Of the date on which this Convention will come into force, in accordance with article 11.

(c) Of requests for revision in accordance with article 13.

(d) of reservations to this Convention, in accordance with article 12.

ARTICLE 15

The original of this Convention, of which the Chinese, English, French, Russiar, and Spanish texts are equally authentic, shall be deposited with the SecretaryGeneral of the United Nations, who shall send certified copies thereof to all States referred to in article 8.

In witness whereof, the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed this Convention. Done at Geneva, this 29th day of April, 1958.

MEANS OF PROTECTION OF CONTINENTAL SHELF RESOURCES UNDER INTERNATIONAL LAW

The 1958 Geneva Convention on the Continental Shelf provided for the specific rights of a coastal state over the Continental Shelf. Article 2 of this Convention reads:

"1. The coastal state exercises over the Continental Shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

"4. The natural resources referred to in these articles consist of the mineral and other nonliving resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil."

Thus, the Convention provided for the exclusive right of a coastal state to the exploitation of two groups of resources: minerals, and other nonliving resources, and living organisms belonging to sedentary species.

Claims to seabed resources have long existed. "*** historically states have generally recognized the priority of the coastal state to exclusive right over the sedentary fisheries resources of the seabed beyond the limit of territorial waters, particularly where there has been effective and continued use." 1

In contrast, claims to the subsoil resources of the Continental Shelf are of more recent origin.

According to McDougal, the right of exclusive exploitation implies the right to prescribe rules for its protection:

"From the postulate that it is desirable to confer upon the coastal states certain exclusive rights for exploring and exploiting the mineral resources of the adjacent sea floor, it follows, of course, that the coastal state ought also to be authorized to prescribe and to apply whatever regulations are reasonably necessary for accomplishing this purpose." 11 2

The actual text of article 2 of the Geneva Convention is identical with that proposed by the International Law Commission in 1953. In its commentary to article 2, the Commission stated:

"In adopting the article in its present formulation, the Commission desired to avoid language lending itself to interpretation alien to an object which the Commission considers to be of decisive importance; namely, safeguarding the principle of the full freedom of the superjacent sea and the airspace above it. * * * On the other hand, the text, as now adopted, leaves no doubt that the rights conferred upon the coastal state cover, also, rights necessary for and connected with the exploration and the exploitation of the natural resources of the Continental Shelf. These rights comprise full control and jurisdiction, and the right

1 International Law Studies 1959-60. The Law of the Sea: Some Recent Developments, by Carl M. Franklin, Washington, D.C., Government Printing Office, 1961, p. 32.

2 The Public Order of the Oceans. A Contemporary International Law of the Sea, by S. McDougal and William T. Burke. New Haven and London, Yale University Press, 1962, p. 691.

to reserve exploitation and the exploration for the coastal state or its nationals. Such rights include jurisdiction in connection with suppression of crime."'3

The Soviet Writer Molodtsov, in his recent book published by the Academy of Sciences on the regime of the high seas, also came to the same conclusion; namely, that a coastal state has the right to issue proper legislation for the protection of its rights to the Continental Shelf:

"Thus, on the basis of an analysis of all proposals on the character of the rights of the coastal State over the Continental Shelf, it might be concluded that the proposal to recognize the coastal State's sovereign rights to explore and exploit the natural resources of the Continental Shelf, was the most appropriate. On the one hand, this proposal, by recognizing the rights of the coastal State over the Continental Shelf, secures its exclusive supremacy and domination, including the right to legislate and protect its interests on the Continental Shelf. On the other hand, it limits these sovereign rights to special purposes, and thus excludes the possibility of interpreting the convention on the Continental Shelf to the prejudice of the established principle of the freedom of the high seas, which plays an important role in the development of international relations." 4

From the discussions of the International Law Commission and the United Nations Conference on the Law of the Sea, at Geneva in 1958, it follows that, despite the description of coastal State rights as sovereign rights, these rights are limited to a specific purpose, namely exploration and exploitation. According to McDougal:

"Both the Commission and the Conference rejected efforts to provide that the coastal State has "sovereignty" over the Continental Shelf, and the expression "sovereign rights" used in the convention was widely considered to be a compromise which was designated both to limit coastal rights over the seabed and subsoil and waters above and at the same time affirm that they included exclusive rights to exploitation and exploration of the Continental Shelf. Some observers, of course, such as Sir Hersh Lauterpacht, thought that sovereign rights for this limited purpose were equivalent to sovereignty for all purposes, because the limited purpose mentioned was the only possible use ***"*

The scope of natural resources is defined in paragraph 4, article 2. It covers mineral and other nonliving resources, and also living organisms belonging to sedentary species. This paragraph aroused considerable discussion. The joint proposal submitted by Australia and other countries contained the following additional phrase: "but crustacea and swimming species are not included." the plenary session of the Conference this additional phrase was rejected."

At

The rights of a coastal State to exclusive exploration and exploitation of the natural resources on the Continental Shelf are subject to the restrictions established in article 3: "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 airspace above those waters."

The means used for exploitation and exploration shall be reasonable and shall "not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea" (art. 5, par. 1). Thus, the Convention prescribes that protection of the rights over the Continental Shelf should be organized in such a way as to provide for a "minimum of interference and a maximum utilization by all users. 997

Under the provisions of the Convention on the Continental Shelf the superjacent waters of the Continental Shelf beyond the limits of territorial waters are waters of the high seas, and as such are subject to the same status as the high seas. According to article 2 of the Convention on the High Seas: "The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty." Among the freedoms of the high seas are included freedom of navigation, freedom of fishing, freedom to lay submarine cables and pipelines, and freedom to fly over the high seas.

From the doctrine of the freedom of the seas it follows that "fishing everywhere on the high seas is open to subjects of all States." 8 However, fishing for sedentary 3 Ibid., pp. 697-698.

Molodtsov. Mezhdunarodno-pravovoi rezhim otkrytogo moria i kontinental'nogo shel'fa. Moscow, 1960, p. 308.

5 Ibid., p. 718. C. M. Franklin reached the same conclusion "It is difficult to see how the term 'sovereign rights' can mean anything less than 'sovereignty,' particularly when the convention provides that 'the coastal State exercises over the Continental Shelf exclusive rights for the purpose of exploring it and exploiting its natural resources.' Op. cit., p. 47.

M. M. Whiteman. "Conference on the Law of the Sea: Convention on the Continental Shelf," AJIL, v. 52 (1952), No. 4, p. 638.

7 C. M. Franklin, op. cit., p. 83.

Higgins and Colombos. "On the International Law of the Sea," London, New York, Longmans, Green & Co., 1951, 2d ed., p. 280.

species, according to Mouton, "constitutes an exception to the general principle of the freedom of the seas." 9 This exception, which was limited to some historical places, was extended by the Geneva Convention to sedentary species over the entire Continental Shelf. Of course, the validity of the Geneva Convention is limited to the members who signed and ratified it, but nevertheless its provisions constitute an expression of the predominant attitude of the States toward this problem, taking into consideration that the Convention was approved in the final vote at the Conference by 57 in favor as against 3 not in favor, with 8 abstentions. As C. M. Franklin observed:

"The 1958 Geneva Convention on the Continental Shelf in effect was declaratory of this new customary international law; one may even say that the Convention codified the newly established law of the Continental Shelf." 10

Coastal states rights over the Continental Shelf are a recent concept. Their protection beyond the limits of territorial waters may conflict with the customary international rights of other states. Schwarzenberger states:

"In time of peace each subject of international law exercises exclusive jurisdiction on the high seas over all ships which are entitled to fly its own flag, but not over the others. This rule is subject to a number of true and apparent exceptions." 11

The Permanent Court of International Justice, in the Lotus case, states that, except for certain special cases, "vessels on the high seas are subject to no other authority except that of the state whose flag they fly." 12

Thus, both doctrine and international court practice admit that there are certain special cases when vessels on the high seas are subject to the control of states other than those whose flag they fly. Opinions are divided as to what these special cases are. Traditional doctrine admits the right of hot pursuit only in cases of violations of coastal state laws and regulations committed in territorial waters. Gradually, the right of hot pursuit was extended to cases of violations committed in contiguous zones (art. 23 of the Convention of the High Seas). However, the Convention on the Territorial Sea and the Contiguous Zone admitted only the limited control of a coastal state. Article 24 of this Convention

reads as follows:

"1. In a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the control necessary to:

"(a) Prevent infringements of its customs, fiscal, immigration, or sanitary regulations within its territory or territorial sea;

"(b) Punish infringements of the above regulations committed within its territory or territorial sea.

"2. The contiguous zone may not extend beyond 12 miles from the baseline from which the breadth of the territorial sea is measured."

Thus, infringements of coastal state rights to the exclusive exploitation of natural resources on the Continental Shelf were not covered by this Convention. However, the exclusive rights to the exploitation of sedentary fisheries are not new, as mentioned above. In practice other states have abstained from interfering in the exercise of these rights.

Freedom of navigation and freedom of fishing, according to article 2 of the Convention of the High Seas "shall be exercised by all States with reasonable regard to the interests of the other States." On the other hand, the rule of reasonableness, a generally recognized principle of international law, applies to measures of the coastal states for the protection of their rights and interests on the Continental Shelf. It is true that some authors, for instance M. W. Mouton, exclude the possibility of enforcing the regulations of a coastal state against foreigners:

"Exclusive rights on fish or sedentary species outside the 3-mile limit would be contrary to international law and so would be the enforcement of conservation regulations against foreigners." 13

However, he admitted that "the recognized rights on sedentary fisheries constitute an exception to the general principle of the freedom of the seas.

"" 14

Sovereign rights of a coastal state to the exclusive exploitation of the natural resources of the Continental Shelf would be jus nudum without adequate protection. However, hot pursuit and seizure of vessels on the high seas are exceptional

"The Continental Shelf," In Recueil des Cours, 1951, v. 85, p. 353.

10 Op. cit., p. 62.

11 "Manual of International Law," 4th ed., 1962, p. 123.

12 PCIJ, sec. A, No. 10, p. 25.

13 Op. cit., p. 438.

24 Ibid., pp. 352–353.

measures. They are only used in certain cases.

In 1929, the Harvard Research

on Territorial Waters recommended in article 21 that:

"A state may continue on the high sea the pursuit of a vessel of another state and may effect its arrest for violation of this law, if such pursuit was begun while the vessel was in the territorial waters of that state." 15

The limitation of hot pursuit is the logical corollary of the principle that no state on the high seas has exclusive rights, and that, therefore, no state can enact laws concerning them. However, exclusive sovereign rights to the expolitation of natural resources on the Continental Shelf constitute an exception from the rule governing the high seas. This exception is established only for specific purposes strictly determined in the Convention on the Continental Shelf. The validity of any extension of protective measures beyond the limits set forth therein may be questioned from the viewpoint of international law.

JAPANESE LAW GOVERNING FOREIGN FISHING VESSELS

There is no domestic law in Japan, governing the territorial sea. A note of March 5, 1956, received by the United Nations from the Minister of Foreign Affairs expressly states: 1

"Among the Japanese national legislative texts there is none defining the breadth and delimitation of the territorial sea. *** It is, however, evident that Japan traditionally maintains that the distance of 3 miles is the well recognized and firmly established principle of international law as expressed in article 1 of the Convention Between Japan and the United States of America Respecting the Regulation of the Liquor Traffic of 1928 ***."

On the subject of Japanese legislation prohibiting foreign vessels from fishing within the territorial sea, the regulation for the control of fisheries in Hokkaido, issued by the Prime Minister, was in force in 1876.2 It was originally intended to prevent foreign vessels from hunting fur seals and sea otters in the territorial waters of Hokkaido and its neighboring islands. The regulation consisting of three articles provided: 3

"1. No foreign vessel shall be permitted to catch or hunt sea fish and animals. by means of fishing tackle, nets or guns, etc., in waters within the distance of a cannonball shot from the coast of any place in Hokkaido and its neighboring islands under the control of the Japanese Empire.*

"2. When there is the fear that a foreign fishing vessel may violate the above provision, a Japanese fishery investigating officer shall order the ship to leave. However, when he deems that it has already violated the same, he shall board the said ship and inspect its cargo.

"3. When any foreign vessel has violated the provision of article 1, or refused to obey an order to leave or to allow the inspection of its cargo as set forth in. article 2, the investigating officer shall have the said ship anchored at the nearest port under the custody of the consul of the country to which the ship belongs, and. shall ask the consul to punish the culprit with a substantial penalty."

At present, there is no specific law prohibiting foreign vessels from fishing within the territorial sea as evidenced by the following Maritime Police Notice of

16 McDougal, op. cit., p. 903.

*

1 U.N., "Laws and Regulations on the Regime of the Territorial Sea," United Nations Legislative Series,. ST/LEG/SER. B/6. p. 6. The Japanese Government officially stated in its letter of Nov. 29, 1928, to the Preparatory Committee for the Codification of International Law: "(a) Japan has maintained the limit of 3 nautical miles for territorial waters, as is clear from other declaration of neutrality at the time of the FrancoPrussian War of 1870, from the decisions in the cases of the SS Michael and SS Pussia at the Sasebo Prize Court in 1894-95 (e) (3) it is advisable not to entitle any state to exercise any special rights outside its territorial waters." Ibid. It may be observed, however, that during the Franco-Prussian War, Japan's neutrality zone did not remain limited to 3 miles as the letter states, but was extended to 3 ri or the range of a cannon shot, according to Jessup, i.e., about 6 miles. See Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction" (New York: G. A. Jennings Co., 1927), p. 46. Prof. Zengo Ohira pointed out in his article that "Japan has never attempted any control of fishing beyond the limit of her territorial waters and has observed the 3-mile principle of territorial waters when foreigh vessels approached Japanese watersin pursuit of whaling operations." Ôhira, Nichi-So gyogyô no kokusaihô shiteki gaikan" [The Fishery. Problem Between Soviet Russia and Japan], "The journal of International Law and Diplomacy," LVII (1958), p. 226.

2 This was a result of the conclusion of the Treaty of Exchange of Saghalin and the Kurile Islands in 1875 under which Japan obtained the possession of the whole Kurile group including Choumcheu. Ibid. It is not known how long the above regulation was in force. However, see the Prime Minister's Order No. 16, May 23, 1914.

3 Fusakichi Katayama, Dai-Nihon suisanshi [The History of Japanese Fishery] (Tokyo: Nôgyô to Sui-sansha, 1937), p. 459.

According to Professor Ôhira, this distance is 3 miles from the coast. Ôhira, "The Journal of Inter-national Law and Diplomacy," LVII (1958), p. 226.