regardless of the "state of the art" for such 

 exploitation. Beyond the 200 meter limit, the 

 matter is not clear. 



b. It has been suggested that a coastal State's 

 continental shelf extends only to that depth to 

 which the technology of its own nationals is 

 capable of exploiting a natural resource of the 

 shelf. Thus, in reporting the bill which became the 

 Marine Resources and Engineering Development 

 Act, the Senate Commerce Committee explained 

 that the Convention "conveys both specific and 

 immediate rights and prospective or potential 

 rights, the latter to be acquired only as a result of 

 national effort and achievement.'"*^ 



On the other hand, it is contended, every 

 coastal State's continental shelf extends to that 

 depth to which "the state of the art," i.e., the 

 world's most advanced technology can reach, even 

 if that technology is not the result of the coastal 

 State's national effort and achievement.'*^ The 

 panel agrees with this latter position because of 

 the possibUity that the world's most advanced 

 technology may "fly-the-flag" of any coastal 

 State. However, this may not always be the case 

 and it is arguable that a particular coastal State's 

 continental shelf extends only to that depth to 

 which the technological capabUities of either its 

 own nationals, or of the nationals of any other 

 State actually licensed, or available for Ucensing, 

 by it, permit it to reach. 



c. If the Senate Commerce Committee's opin- 

 ion is accepted, the question arises whether the 

 continental shelf beyond the 200 meter isobath 

 may be different in extent for some natural 

 resources, e.g., manganese nodules, if the depths 

 reachable by the technologies for exploiting the 

 different mineral resources vary.'" The panel 

 concludes that an affirmative answer to this 

 question is impUcit in the exploitability criterion. 

 For example, it would not then be reasonable to 

 take the depth at which a sedentary fishery may 

 admit of exploitation as the measure of the coastal 



''■'S. Rep. No. 528, 89th Cong., 1st Sess. 11 (1965). 



48 



See Franklin, The Law of the Sea: Some Recent 

 Developments 23 (Naval War College Blue Book Series 

 No. 53, 1961). Mouton, The Continental Shelf 42 

 (1952); and Young, The Geneva Convention on the 

 Continental Shelf: A First Impression, 52 Am. J. Int'I L. 

 733,735(1958). 



49 



Goldie, The Contents of Davy Jones's Locker-A 

 Proposed Regime for the Seabed and Subsoil, 22 Rutgers 

 L. Rev. 1,17 (1968). 



State's "sovereign rights" for the purpose of 

 exploiting oil and gas or manganese nodules. Yet it 

 may be argued that the Uteral language of the 

 Convention gives the coastal State "sovereign 

 rights" to explore and exploit all the natural 

 resources of a particular area of the seabed and 

 subsoil beyond 200 meters, as long as any natural 

 resource in the area admits of exploitation. 



d. If the Senate Commerce Committee's opin- 

 ion is not accepted, the question may be raised 

 whether the limits of the continental shelf must be 

 uniform for all coastal States. The "state-of-the- 

 art" may be capable of exploiting a particular 

 mineral resource at depths up to 2,500 meters, for 

 example, off the coast of one State but not off the 

 coast of another, because of different current and 

 wave conditions off the two coasts. It may be 

 argued that a coastal State must prove that the 

 "state-of-the-art" admits of exploitation of that 

 resource at a specified depth off its coast, before it 

 may exercise "sovereign rights" for the purpose of 

 such exploitation. 



In reply, it is maintained that this question is 

 not likely to arise. 



Presumably a coastal State will not begin to dig, or 

 a company pay for a lease or license, unless it is 

 confident that the waters admit of exploitation. If 

 the coastal State sought to exclude another state, 

 the latter, by seeking to dig, might in effect be 

 agreeing that the waters admit of exploitation and 

 thereby be proving the right of the coastal State to 

 exclude it. ^ ° 



e. It seems to be assumed that a particular 

 depth "admits of exploitation if it is technolog- 

 ically possible to exploit the resource at that 

 depth. Exploitation at that depth need not be 

 economical. "Exploitation" in this sense would 

 mean the technical possibiUty of extracting the 

 mineral resource as distinguished from the prelimi- 

 nary operation of exploring and opening the well 

 or mine. Yet it is also reasonable to say that the 

 concept of exploitabihty has an economic dimen- 

 sion, implying that it is practical to extract the 

 resource. 



I f. To Professor Goldie, the exploitabihty cri- 

 terion was "intended to have a supplementary and 



^"Henkin, supra note 38, at 16-17, n. 43. 



VIII- 16 



