subordinate function to tliat of the two liundrcd 

 meter isobath test."' ' 



Originally it was intended to permit a coastal State 

 to exercise sovereign rights over continental shelf 

 activities carried out on the continental slope and 

 in the continental borderland in the continuation 

 of activities begun, or connected with those 

 carried out, in the zone between its territorial sea 

 and the two hundred meter bathymetric contour 

 line. The test was thus intended to provide a 

 practical solution to day-to-day problems which 

 would arise if the two hundred bathymetric 

 contour line were accepted as a complete and final 

 cut-offline.^'^ 



2. The Adjacency Criterion 



Meeting the exploitabUity criterion gives the 

 coastal State "sovereign rights" over only the 

 "submarine areas adjacent to the coast." Sharply 

 different positions have been taken on the mean- 

 ing of this adjacency criterion. 



a. At one extreme, it has been seriously 

 suggested that the adjacency criterion is not a 

 limitation upon the exploitability criterion at all, 

 but that as soon as it becomes technologically 

 possible to exploit mineral resources to any ocean 

 depth, the sea-bed of all the submarine areas of the 

 world-totaUng more than 128,000,000 square 

 miles beyond the 200-meter isobath— will become 

 part of the continental shelves of the coastal 

 States.'^ This view would be implemented by 

 Article 6 of the Convention which provides that if 

 opposite or adjacent nations share a continental 

 shelf, the boundaries between them shall be 



Goldie, supra note 49, at 8. 



^^Shigeru Oda, The Geneva Conventions: Some 

 Suggestions to their Revisions, American Bar Association 

 National Institute on Marine Resources, June 9, 1967, at 

 6-7. There is some legislative history to support this 

 reading of the Convention. Compare 1956 International 

 Law Commision Report, at 41; Statement by Mr. Samad 

 of Pakistan, 6 Official Records, U.N. Conference on Law 

 of the Sea 19, U.N. Doc. A/CONF. 13/42 (1958); 

 Statement by Mr. Fattal of Lebanon, id. at 38. See also 

 Bemfeld, Developing the Resources of the Sea-Security 

 of Investment, 2 International Lawyer 67, 72-73 (1967). 

 It is estimated that the oceans cover approximately 

 139,000,000 square mUes, of which the continental 

 shelves up to the 200-meter isobath account for 

 10,422,000 square miles. See Menard and Smith, 

 Hypsometry of Ocean Basin Provinces, 71 J. of Geo- 

 physical Research 4305, 4315 (1966). 



determined by applying specified principles of 

 equidistance. These principles, in effect, would 

 give each coastal State sovereign rights to the 

 natural resources of the seabed and subsoil from 

 its coasts to the median line, i.e., the line every 

 point of which is equidistant from the coasts of 

 the nearest States. 



As a practical matter, adoption of this position 

 would induce any prudent entrepeneur to seek the 

 permission of some one or more coastal States- 

 assuming he could identify them— in order to 

 proceed with exploration for mineral resources 

 anywhere in the oceans even before the technolog- 

 ical capability to exploit these mineral resources 

 was demonstrated. For as soon as such capabUity 

 was shown, the resources of the area of the ocean 

 bottom in question would belong to some coastal 

 State or States. 



Apart from the question of the desirability of 

 such an outcome— a question which is considered 

 in Appendix A to this report— this interpretation 

 of the Continental Shelf Convention is the most 

 difficult to sustain. The panel agrees with Pro- 

 fessor Henkin that no government "would dare 

 propose" it and "if one did, the other nations 

 would reject it."''* This interpretation reads the 

 definition of the continental shelf as if the 

 adjacency criterion were not there. It ignores the 

 fact that the Convention, after all, sought to 

 define the continental shelf and resorted to the 

 exploitabihty test to effect some limited extension 

 of sovereign rights.'' There was no intention to 

 curtail so drastically the proclamation in Article 2 

 of the Convention on the High Seas that "no State 

 may vahdly purport to subject any part of [the 

 high seas] to its sovereignty." 



This interpretation has not been urged upon the 

 panel by any international lawyer or industry 

 group with whom it has discussed the question. We 

 are led to think that it is generally discredited in 

 this country and elsewhere. 



Henkin, supra note 38, at 19. 



"/cf. at 18. Professor Goldie, however, maintains 

 that the adjacency criterion is not much of a limit because 

 "a continental shelf region can remain 'adjacent' to a 

 coast on its landward side and yet eventually extend out 

 to mid-ocean areas by means of a series of claims-each 

 successive claim adding zones onto the further side of the 

 shelf region, which still remains 'adjacent' on its coastal 

 side." Goldie, supra note 49, at 11. As we saw. Professor 

 Goldie sees the expIoitabiUty criterion as orginaUy seeking 

 to impose a limit on the claims of the coastal State. 



VIII-17 



