Other Offshore Areas

There are areas beyond the territorial sea, whether of three or two hundred miles, where coastal states have asserted, or may in the future assert jurisdiction for limited purposes, which may in one way or another impinge on submarines, ASW vessels, and detection devices.

The most important of these is the continental shelf, with respect to which the coastal state exercises “sovereign rights for the purposes of exploring it and exploiting its natural resources.”50 Except through claims made by states to a territorial sea of more than twelve miles, coastal states do not have sovereignty over the water column over the continental shelf. The continental shelf is defined in the Geneva Convention on the Continental Shelf as the submarine areas to a depth of 200 metres and beyond that “to where the depth of the superjacent waters admits of the exploitation of the natural resources” of the area.51 The emplacement of sensors or like military devices on the shelf by the coastal state seems to be neither expressly authorized nor expressly prohibited. The right—if such there is—of the coastal state to place such equipment on its continental shelf must flow from the general freedom of the seas recognized by international law. A coastal state would be in a position to assert that the installation of such devices by another state on the continental shelf over which the coastal state exercises sovereign rights for the purposes of exploration and exploitation might interfere with those activities and might therefore be prohibited. But one cannot speak with any confidence of the existing state of the law.52

The precise content of the concepts of the “exclusive economic zone” and of the “patrimonial sea” has not yet been clarified. They do, however, hold the potential of allowing the coastal state to prohibit certain military activities in the 200-mile zone claimed under one rubric or the other. The proposal of Kenya would require that the Sea and the Seabed, Woodrow Wilson International Center for Scholars, Ocean Series 304, at 30 (1972).

  • 50 Convention on the Continental Shelf, done at Geneva, April 29, 1958, art. 2, para. 1,15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311.
  • 51 Art. 1.
  • 52 See E. D. Brown, Arms Control in Hydrospace, Woodrow Wilson International Center for Scholars, Ocean Series 301, at 22—34, especially at 33 (1971).

“any exploration or exploitation activity within its Economic Zone is carried out exclusively for peaceful purposes.”[1] Both concepts, as enunciated thus far, would allow the coastal state to control “scientific research.”[2] This is a point on which developing coastal states are notoriously sensitive. They fear that what is passed off as pure research will turn out to be exploration for natural resources or to have some military significance. Lacking as they are in scientific capabilities themselves, they have not the means ofascertaining what sort ofresearch is being conducted offtheir coasts, the motives for them, and the use to which they will be put, nor can they utilize the results of such research, even if the results are revealed to them. A requirement of peaceful use of the 200-mile zone and the power to prohibit or control scientific research in the area could be used in tandem to prohibit, at least on paper, certain ASW activities on the ground that investigations are being conducted for other than peaceful purposes. The guarantee of freedom of navigation could thus be brought to naught.

  • [1] Draft Article X submitted by Kenya, as cited supra note 26.
  • [2] Draft Article V(c) submitted by Kenya, as cited supra note 26: Declaration of Santo Domingo,Patrimonial Sea, para. 2, as cited supra note 27.
 
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