An Introduction To Coastal States Rights Over The Resources Of The Continental Self

 

By

Fatihu A. Abba*

f.a.abba@dundee.ac.uk

The purpose of this submission is to restate that under international law, sovereign rights to explore and exploit the non-living resources of the continental shelf are vested in the sovereign state[1] and not in the component states.[2]

The submission briefly reviews the genesis of the concept of the continental shelf[3] and its current regime under international law. The paper proceeds to analyse the basis of coastal state’s right over the resources of the continental shelf to the exclusion of component states within a sovereign state. The paper concluded that though coastal sates have exclusive rights to explore and exploit the resources of the continental shelf, these rights are however limited in both nature and form. This is however, not denying the obvious fact that component states could still exercise jurisdiction on the continental shelf and thus access its resources if their subsisting legal status were to be altered under international law.

Until of recent, the concept of the continental[4] shelf was relatively unknown within the overall phenomenon known as “the law of sea” as was evidenced in 1918 when, the United States Department of state declared that “the U.S. has no jurisdiction over the ocean bottom of the gulf of Mexico beyond the territorial waters adjacent to the coast.”[5] Of course, this position was quite true up to 1939 when, Lord Asquith in the Abu Dhabi Arbitration[6] of 1951 contended that as at 1939 “neither contracting party had ever heard of the doctrine of the continental shelf, which as a legal doctrine did not then exist.”[7] Though geologically “there has always been a continental shelf”[8]

However, the discovery by experts that a considerable reserve of hydrocarbons were entrapped [9]in many parts of the continental shelf off the coasts of the United States and the development of techniques for deep sea mining and drilling, which made possible, the recovery of those resources, prompted President Truman to declare the Truman Proclamation of September 28, 1945 by stating that “the Government of the United States regards the natural resources of the subsoil and seabed of the continental shelf beyond the high seas but contiguous to  the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control…The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.”[10]This proclamation is still the springboard upon which all the rights of the coastal state over the continental shelf are hinged despite its shortcomings at determining the length and breadth of the shelf, then.[11]

The exploitability criterion adopted by the 1958 Convention on the Continental Shelf[12] in defining[13] the continental shelf introduced controversy[14] in respect of coastal states right over their continental shelves. In the first instance, the definition suggests that every coastal state has a continental shelf, whether it actually exploits the area or not. The accuracy of this inference is confirmed by a provision indicating that other states cannot undertake exploratory or exploitative activities on the shelf, without the consent from the coastal state, despite the fact that the coastal state is doing nothing in the area.[15]  This also seems consistent with the fact that the shelf extends to the point where it “admits” of exploitation, and the very notion of “admits” signifies that there be no need for actual activity. The second interesting point is that the concept that exploitation must only be something capable of taking place, as opposed to something actually occurring, suggests that the outer limit of every coastal state automatically jumps to where technology would permit exploitation to take place. Were this not so, the technology-rich states would be able to exploit resources from the shelves of the lesser developed coastal state. [16]

Secondly, the classical doctrine of the continental shelf as formulated in the North Sea Continental Shelf cases[17]  is that the continental shelf constitutes a natural prolongation of coastal states territory into and under the sea. However, if only natural prolongation was to be the sole basis of determining the continental shelf and coastal states rights over it, what happens to coastal states which had little or no continental shelf in the physical concept of the shelf?[18] Additionally, it is difficult to apply the natural prolongation concept whenever there is a single continuous shelf on which nature had not drawn any precise separation, especially, where the affected states share a continental shelf whose length is less than 200 nautical miles.[19]

The foregoing difficulty was overcome by Art. 76 of the United Nations Convention on the Law of the Sea[20] which states that “The continental shelf of a coastal state comprises the seabed and the subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to distance of 200 miles from the baseline from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.[21]

The foregoing development of the law enabled coastal states to claim that the continental shelf appertaining to them extends up to 200 nautical miles from their coasts whatever the geographical characteristics of the sea bed and subsoil. This contention reinforces the earlier statement of the ICJ in paragraph 3(a) of its judgement in the Libya/Malta[22] continental shelf case where the court stated that

 

“..at least in so far as those areas are situated at a distance under 200 miles from the coasts in question, title depends solely on the distance from the coasts of the claimant states of seabed claimed by way of continental shelf, and the geological or geormorphological characteristics of these characteristics are completely immaterial.”

However, the basis of coastal states title to the continental shelf as Professor Prosper Weil notes is “strictly speaking, neither distance nor natural prolongation” because, to him the basis of title is founded on the principle that the land dominates the sea through the intermediary of the coasts, in other words in the principle of adjacency as the ICJ contended that “the land is the legal source of the power which a state may exercise over the territorial extensions seaward.”[23] This principle captured in the phrase “the land dominates the sea”[24] constitutes the ground norm of all legal title over the sea. The principle is not about territory as such but about the rights a state exercises over it. Maritime rights and jurisdiction do not derive from landmass but from sovereignty over the land mass. This philosophy was equally highlighted by the ICJ in a well known passage from the Aegean Sea Continental shelf cases that “...it is solely by virtue of the coastal state’s sovereignty over the land that rights of exploration and exploitation in the continental shelf can attach to it, ipso jure, under international law. In short, continental shelf rights are legally both an emanation from and an automatic adjunct of the territorial sovereignty of the coastal state” [25]

Since maritime jurisdiction is an attribute of state sovereignty,[26] component states within a sovereign state are excluded[27] from exercising such rights. In federations such as Australia, Canada, and the United States, where the component states have a right develop their own internal mineral law regimes,[28] serious questions have arisen regarding the territorial extent of the state’s mineral ownership and control. In Australia, a long simmering disagreement between the Australian states and the central government over the ownership of offshore minerals came to a head in 1973 when the labour Government pushed through an Act that declared federal sovereignty over both the continental shelf and the territorial sea.

In upholding the legislation in New South Wales V. The Commonwealth[29] the Australian High Court made the following comments:

A consequence of creation of Commonwealth under the constitution and the grant of the power with respect to external affairs was, in my opinion, to vest in the Commonwealth any propriety rights and legislative power which the colonies might have had in or in relation to the territorial sea, seabed and airspace and continental shelf and incline. Propriety rights and legislative powers in these matters of international concern would then coalesce and unite in the nation….That, in my opinion, was the intendment of the constitution.

This result conforms, in my opinion, to an essential feature of a federation, namely, that it is the nation and not the integers of the federation which must have power to protect and control as a national function the area of the marginal seas, the seabed and airspace and the continental shelf and incline. This has been decided by the Supreme Court of the United States and Canada…..The Canadian Supreme Court’s conclusion depends in no small degree upon the fact of Canada’s independent nationhood and its recognition as such by the nations of the world.

It is my opinion, therefore, that upon the enactment of the Constitution, any rights or powers which the former colonies had in the territorial sea, seabed and airspace or in the continental shelf and incline became vested in the Commonwealth. The emergence of Australia as an independent nation state confirmed this situation.

Even after the decision in the principal case, which came to be known as the Seas and Submerged Lands case, the Australian states widely defied the central government by continuing to issue drilling and production permits in their offshore areas. The controversy was finally resolved in 1980, when the Coastal Waters (State Title) Act vested title in each state to its “coastal waters” and, by necessary implication, right and title to minerals beneath the coastal waters. The term “coastal waters” was defined to include a state’s internal waters and a three-mile territorial sea. Mineral rights beneath the area seaward from the coastal waters were held by the central commonwealth government.

In the United States, sequel the Truman proclamation, the states of the Union who found themselves bordering the Atlantic, Pacific, and Caribbean water areas shared the economic interests held by the world’s sovereigns in the nation-state arena. Within the two years of the Proclamation, a series of Supreme Court cases concerning the matter of federal/state relations and the continental shelf began to unfold. The earliest was U.S V. California,[30]  and it was somewhat generated by the early 19th century Pollard V. Haggan case,[31] which held that, as each new seaboard state entered into the Union, the tideland areas located between the high and low water marks fell under state control, as such were controlled by the original 13 colonies at the time they associated. The thinking was that since the Pollard decision related to areas that were submerged, at least part of the time, perhaps states also controlled permanently submerged areas located seaward of the low water mark. In its argument before the supreme court, the state of California suggested that since the Act that brought it into the Union maintained it came in on an equal footing with the original 13 colonies, as a result of the fact these came into the Union with control over the offshore shelf, so did California. The court rejected California’s contention and granted the federal governments request for an injunction against further trespass by California or its lessees. The court cited several reasons worthy of our attention.

The first reason cited by the Court for rejecting California’s claim to state control over a 3 mile offshore portion of the continental shelf proclaimed by President Truman related to the contention that the original 13 colonies had brought with them their own control over the shelf areas of such breadth. The court found that the prevailing international law at the time of the American Revolution was that of mare liberum, or open seas.[32] As a result, all areas, both water as well as submerged lands, lying below the low water mark along the coastline was considered outside coastal state control. Secondly, the Court reasoned that the evidence before it did not suggest the beginning development of a nation state practice with regard to closed sea area until about 1793, after the formation of the Union. Consequently, at the time the original colonies formed themselves into a political association, they could not have had any claims to offshore areas that were recognised in international law. The third reason given by the court for rejecting California’s argument was that, even had international law on closed sea areas crystallized during the time of the separate colonies, there was nothing to suggest that the crown ever relinquished such control to the colonies, and had it done so, because powers over matters affecting foreign affairs passed to the federal government after the formation of the Union, the original 13 states would have been without control over offshore areas.

Justices Reed and Frankfurter wrote dissenting opinions in the case. Reed focused largely on his disagreement with the majority’s reading of historical record concerning the existence of a closed seas concept at the time of the revolution. He failed to account for the federal government’s control over foreign affairs and the consequent movement of offshore control from the original states to the national government itself. Frankfurter argued that, since the federal government was asking for an injunction against trespass, it had to show ownership of the shelf area in question. However, the best the majority could do was to say that California did not own a 3 mile area of the shelf, and that the federal government has national dominion over the entirety of the shelf. Ownership and dominion are distinct concepts in Frankfurters mind. Trespass lies only with the former.[33]

Three years after the U.S V California case, the court was confronted with another trespass action brought by the federal government, this time against the state of Louisiana.[34] Louisiana argued that California had missed the opportunity to contend in the earlier case that, since it joined the Union after the concept of  mare clausum,[35] or closed seas, had begun its growth in the late 18th century, it came in with claim to submerged offshore areas that the federal government should respect. In other words,  while the original 13 colonies may have formed into a Union at a time when mare liberum was the prevalent notion, states joining any time after the ascendancy of mare clausum held offshore areas prior to statehood, and such holdings were to be respected. In Louisiana’s case, however, the area claimed was said to extend seaward some 27 miles, not simply 3 miles like claimed by California.  In the case of U.S V. Louisiana, the court ruled, in a 6 to 1 decision, 2 justices not participating, to reject the claim advanced by the state.

Though the majority’s decision was based on the foreign affairs implications cited in U.S. V California, that is, any assertion of offshore control can lead to other nation states expressing concerns and those concerns should be met by a single voice, it could also have rested on other grounds. Specifically, the court could have argued that it is one thing for states that have joined the union after the mare clausum concept surfaced to claim to stand in a better position than the original 13 colonies, and another for them to be able to demonstrate control over areas now claimed at the very time they joined the Union. Moreover, the court could have said that, accepting any claim by Louisiana that it actually controlled offshore areas at the time of affiliation with the Union, since it joined under an enabling Act which clearly provided that it came in on an equal footing with the original 13, it retained nothing in view of the fact the original 13 had nothing. In any case the majority’s opinion is explicit in rejecting state claims to portions of the shelf. Given the foreign affairs dimension of offshore control, assertions of that sort fall exclusively within the bailiwick of the federal government.

The U.S. V Texas[36] case, handed down contemporaneously with the Louisiana decision, dealt with a contention raised by Texas and not made in the Louisiana case. Texas claimed that before it joined the Union it had in fact actually controlled offshore areas out to a point 9 miles from the low water mark along its coastline. In that sense Texas presented a case distinct from that presented by Louisiana. In 1793 the doctrine of mare clausum began to develop. In 1836 Texas became independent of Mexico. Not until 1845 did it become a member of the Union. Thus, between 1836 and 1845 the doctrine of mare clausum functioned to Texas’ advantage. As an independent nation it established control to a point 9 miles from its coastline. In joining the Union, only   sovereignty was relinquished to the federal government. The joint resolution annexing Texas indicated as much in stating that “vacant and unappropriated lands lying within its limits” were to be retained by the new state.

The court’s decision was 4 to 3, with 2 justices not participating. In finding for the federal government the majority returned to the basic premise in the Louisiana case. To allow the states to exercise control over offshore areas raised the possibility of foreign affairs problems with other nations, and the United States should speak with only one voice on such matters. However, it also referenced the issue of the enabling Act alluded to above in Louisiana case. Specifically, if the original 13 colonies came in with no claim to an offshore area, due to the absence of the development of mare clausum doctrine prior to 1793, how could any state joining the Union after that date claim that the equal footing provision in an enabling Act entitled it to such a claim because of affiliation after the date for the development of the closed sea concept? In ruling against Texas’ claim the court went to great lengths to acknowledge that between 1836 and 1845 Texas may well have established a claim to that portion of the shelf of the continental shelf extending out 9 miles from its coast. Nonetheless, just as the enabling Act under which Texas joined assured it things the original 13 colonies had at the time of their affiliation, so that Act assured the colonies, and all other states, that Texas would lose things it had when being integrated into the Union. To come on an equal footing mean it could not continue to retain things not had by the others. Conjoining these two explanations advanced by the majority, it is clear that any attempt to distinguish between the passage of sovereignty and ownership, and maintain that association with the Union passed the former and not the latter, is unproductive. The explanation concerning foreign affairs certainly seems to address the transference of sovereignty, and that concerning the notion of equal footing addresses ownership.

In another string dissenting opinion Justice Reed pointed out why he believed the state had a better claim than the federal government. Basically his position was that the enabling Act had never been held to “take” things from new states. And given Texas’ admitted claim to offshore areas during its tenure as an independent nation state, it was not enough to cite foreign affairs as a basis for a relinquishment. Absent some clear language in the enabling Act concerning Texas, and indeed the language about vacant and unappropriated lands “within its limits” suggested the exact contrary, the simple “need” for a single voice in foreign affairs was inadequate to result in the federal government obtaining what Texas had.

In summarising the United States position in respect of federal/state continental shelf relations prior to the adoption of the Submerged Lands Act (SLA) of May 22, 1953 and its subsequent amendments, Professor Zedalis submitted that it “indicates the dominance by the federal government. The two principal reasons on which the dominance would rest would have to be foreign affairs and the levelling effect of the enabling Acts which brought new states into the union. The whole concept of rights to offshore areas turns on mare clausum. Thus, any state claiming such areas and joining the union prior to the development of this doctrine would be hard pressed to make their case. Yet even if one joined the Union after the time the doctrine began to develop, or was able to show they in fact experienced a period of independence during a time when the doctrine operated, foreign affairs and the enabling Acts would serve to blunt their claim.”[37]

These states, having lost in the court, resorted to the congress, where they promptly won back what they felt had been taken from them. The Submerged Lands Act,[38] vests the coastal states with ownership rights in “all lands permanently or periodically covered by tidal waters…to a line three geographical miles distant from the coast-line of each state.” In several instances the clause of the Submerged Lands Act providing that state ownership extended to a states boundary line “as it existed at the time such state became member of the Union or as hereafter approved by the Congress” had the effect of ceding as much as ten miles of offshore mineral rights to individual states.[39]

However, the United states has continued to assert full sovereignty over  “the subsoil and seabed of the outer Continental Shelf …. and are subject to its jurisdiction, control, and power of disposition…”[40]

In Canada, the Newfoundland Court of Appeals reached a different result with respect to Newfoundland’s claim to mineral ownership and legislative control over the territorial sea. Distinguishing an earlier case[41] in which the Supreme Court of Canada had ruled that the federal government and not the British Columbia has rights to lands beneath the western territorial sea and continental shelf, the provincial court pointed out that, unlike the other Canadian provinces, Newfoundland had enjoyed the same legal status within the British Commonwealth as Australia and Canada and had enacted various statutes relating to the territorial sea and its underlying seabed. The court concluded that neither the establishment of a Commission of Government in 1934 nor the terms of the Union with Canada in 1949 had changed Newfoundland’s sovereign rights in the territorial sea. It did, however, agree that Newfoundland had no claims to the continental shelf.

The jurisdictional disputes between the federal government and Canadian provinces subsequently diminished in importance as a result of a variety of political agreements. These accords established boards to manage the offshore areas and provided for appointment of boards members by both the federal and provincial governments.

Towards the end, it would seem that despite coastal states jurisdiction over the resources of the continental shelf, it is apparent that such jurisdiction is limited in nature as coastal states can only exercise “sovereign rights” and not “sovereignty”[42] over the continental shelf resources. In addition, these rights are in respect of the exploration and exploitation of the natural resources of the continental shelf as it has never been regarded as part of the territory of the state.  This statement is quite true because, the two Conventions did not appear to confer on the coastal states an authority over the shelf that is equivalent to the authority the coastal state has over its landmass, internal waters or territorial seas.[43]

In addition to the foregoing limitations in the nature of states rights over the resources of the continental shelf, the scope or area (s) over which the state can exercise such rights have also been defined by UNCLOS. Thus states can only exercise those rights within the 200 nautical miles of the continental shelf. These limitations are further reflected by the preservation of the freedom of the high seas.[44] However, for those states whose continental margin is beyond 200 nautical miles, exploitation of resources is subject to additional restrictions under UNCLOS. Where such resources are exploited in this outer portion of the shelf, the state which, of course has the exclusive right to engage in such exploitation has to pay to the International Sea Bed Authority a proportion of the value or volume of the production at the site after the first five years of exploitation.[45]

In conclusion, it is without doubt that in some jurisdictions i.e., the United States, Australia, Canada and the Russian Federation, etc, control over the resources of the territorial seas have been conferred on some component states. However, such control was informed by their peculiarities. But, even in those states, jurisdiction over the resources of the continental shelf has been retained by the state. In the end, this restatement may neither be farfetched nor surprising if we remember that, UNCLOS has crystallised the customary state practice (s) at least, with regards to the rights of states in the continental.[46]

In the end, it would seem that component states desirous of exercising jurisdiction over the shelf and its resources are, probably confronted with an insurmountable hurdle because, for one, they are not recognised entities under international law and, secondly, though a coastal state may appropriate the resources of the continental shelf, the regime of the shelf transcends municipal law since coastal states rights therein are inherent and exclusive. However, the predicament of the component states is not beyond redemption if they can manage to overcome the “legal personality barrier” as indeed achieved by some component state of the erstwhile Soviet Union after its disintegration. Were this to occur, international law will neither preclude nor inhibit such emerging states from asserting jurisdiction over their continental shelves. Otherwise, unfortunately, the status remains as it is.

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Martin, D. Et al, Cases & Materials on International Law (Oxford University Press, 2003)

 

Prosper, W. The Law of Maritime Delimitations-Reflections (Cambridge: Grotius Publications Limited, 1989)

 

Zedalis, R.J. Survey of International Energy and Related Natural Resources Law (Copy on file with Author)

 

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Knight, H.G., “The Draft United Nations Conventions on the International Seabed Area: Background, Description, and Some Preliminary Thoughts” 8 San Diego L. Rev. 459 (1971)

 

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Morris, J.W., “The North Sea Continental shelf: Oil and Gas Legal Problems” HeinOnline-2 Int’L. 191-214 (1967-1968)

 

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[1] A sovereign state in this article is synonymous with “Coastal state” or “State”. It is defined as “A sovereign and independent entity capable of entering into relations with other states and enjoying international legal personality.”  To qualify as such a state, the entity must have a permanent population, a defined territory over which it exercises authority   and an effective government. This state is termed an independent state because it is not part of a larger whole whose government it is subject.  See generally Art. 1 Montevideo Convention on the Rights and Duties of States 1933 135 LNTS (1936) 19. For the criteria of statehood under international law, and definitions of a state, see respectively,  Martin Dixon & Robert McCorquodale, Cases and Materials on International Law (Fourth ed.) (Oxford University Press 2003) pp.131-174 and Bryan A. Garner et al (eds.) Blacks Law Dictionary (eighth ed.) (Thomson West 2004) p. 1430                                              

[2] In this article, as opposed to the sovereign state, a component state refers to a non sovereign or dependent state. Such a component state “is a constituent part of a greater state that includes both it and one or more others, and to whose government it is subject; a state that is not complete and self existent. Among other things, a non sovereign state has no power to engage in foreign relations.” See Blacks Law Dictionary, Ibid. p 1444. However, in the context of this article, a component state is intended to refer to those component states that have a coastal front.

[3]Territorial sea has not been addressed by the paper as costal states rights over it are same as those it exercises over its land territory. Equally, the Exclusive Economic Zone (herein the “EEZ”) is not included because of the variations in the regimes under international law and, besides, the EEZ is subsumed within the continental shelf regime.

[4] The seabed adjacent to a typical coast is usually considered to consist of three separate sections. First, the section that slopes down gradually from the low-water mark averaging about 13 metres, at which the angle of delineation increases markedly: this is the continental shelf proper. Second, the section bordering the shelf and having the steeper slope, going down to around 1,200 to 3,500 metres: this is known as the continental slope. Third, there is in many locations an area beyond the slope where the seabed falls away more gradually and is composed mainly of sediments washed away from the continents. This is called the continental rise, and typically descends to a depth of around 3,500 to 5,500 metres. Together these three sections form the continental margin which is about one-fifth of the sea-floor. See Churchill, R.R. & A.V. Lowe., The Law of the Sea (third edition), Manchester University Press 1999 at p. 141.

[5] Morris, J.W. The North Sea Continental Shelf: Oil and Gas Legal Problems HeinOnline—2 Int’l   L. 191-214  at  192 Quoting McDougal and Burke, The Public Order of Ocean, p.636 n.218

[6]Petroleum Development LTD V. The Sheikh of Abu Dhabi, Source: Research Centre for International Law (eds.): International Boundary Cases The Continental Shelf, Vol.1 Cambridge, Grotius Publications Limited 1992 pp 57-76

[7] Ibid, p 66

[8]  R.X. Zedalis  (Professor of Law) Survey of International Energy and Related Natural Resources Law Parts 1 & 2.  p. 12 (Document on file with Author).  In fact, the expression “Continental Shelf” was first used by a geographer in 1898. See supra note 6 at p. 67

[9] The continental shelf has assumed this importance because, in many places the continental margin-and especially the continental shelf- is rich in natural resources. Most important are the extensive oil and gas reserves, which represent something like ninety percent of the total value of mineral taken from the sea bed. Offshore exploitation of oil and gas on commercial scale did not begin until shortly before the second world war, but it expanded rapidly as a result of development in technology and increasing demand. By 1990’s offshore oil and gas production accounted for around one-third of total world production; and some estimated that around 70 percent of the world’s undiscovered reserves lie offshore. It is expected that by this year there will be around 4,100 offshore oil and gas fields on stream, and almost 9,000 offshore platforms associated with them.  See supra note 4 at p. 141

[10] Proclamation No. 2667, Policy of the United States with Respect to Natural Resources of the Subsoil and Sea Bed of the Continental shelf, Sept. 28, 1945, 10 Fed. Reg. 12,303 (1945).

[11] The Truman Proclamation did not fix in terms of miles or depth the seaward limit for the claim which it advanced to the continental shelf. The Proclamation simply refers to the concept of a “contiguous” shelf. (However, an accompanying memorandum by the State Department Legal Advisor noted that “The continental shelf is usually defined as that part of the undersea landmass (600 feet) in depth’). See further, Churchill, R.R. & Lowe, A.V. The Law of the Sea, supra note 4 p. 146

[12] Convention on the Continental Shelf, Geneva, 29 April 1958. in force 30 September 1962. Thirty-seven ratifications. 499 UNTS 311; ND 1 P.101 (Herein the CSC 1958)

[13] Art. 1 CSC 1958   Defined the continental shelf as referring to: (a) the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

[14] In spite of the wide spread adoption of the 1958 Conventions definition of the continental shelf, that definition was not free from difficulty. Even at the 1958 conference it was recognised that the addition of the exploitability test rendered the seaward limit dangerously imprecise. It was clear that new technology would push the limit farther and farther from the shore, and that “exploitability criterion-which could mean anything from ability to drag up a basket of sedentary fish to the ability to establish a full scale-profit offshore oil complex- was itself an elusive criterion. Moreover, as Churchill and Lowe notes “it was not clear whether it was the ability of the coastal state, or of other state-or even of all other states-which was in question. The use of the word “adjacent” also raised questions. Was it intended to operate so as to restrain the seaward limit of exploitability, holding it within some notional area of adjacency”? Or did it simply mean that, to qualify as continental shelf, the seabed must be one continuous mass, unbroken by troughs or depressions, regardless of how far it extended?” Supra note 4 at p. 147

[15] Art. 2(2)  CSC 1958

[16] The implication is that, states without the technology for deep sea bed mining may be deprived of the benefit of the resources on the their continental shelf

[17] North Sea Continental Shelf (Federal Republic of Germany/Denmark.; Federal Republic of Germany/Netherlands), 1969 ICJ REP 3 (Feb.20) (hereinafter North Sea Cases).

[18] For example, the  use of  the notion  of natural prolongation or the physical shelf did not favour states which have no significant geological shelf for example, Chile, Equador and Peru, whose shelves drop sharply away into the ocean depths at a relatively short distance from the coast. See, supra note 6 p13. It has been established that the shelf edge varies from  water depths of 20 to 550 metres. The width of the continental shelf also varies substantially, ranging from virtually zero breadth off the western coast of South America to 800 miles or more beneath the Bering Sea, averaging approximately 40 miles in width world-wide. In the United States, shelf width varies from as little as one mile off portions of California, to 100-150 miles off the Gulf coast, to over 200 miles off New England. See generally, Knight H.G., The Draft United Nations Conventions On The International Seabed Area: Background, Description, and Some Preliminary Thoughts, 8 San Diego L. Rev. 459, 463-66 (1971)

[19] See, P. Weil, The Law of Maritime Delimitations-Reflections (Cambridge:Grotius Publications Limited, 1989) p.26. This is however more relevant in terms of delimiting a continental shelf whose breadth or length is less than 400 nautical miles. A good example here is the Timor Gap whose delimitation is still deadlocked because Australia prefers the natural prolongation principle and East-Timor prefer the median line principle. The disputed area is less than 400 nautical miles. Several other examples abound across the globe. (A nautical mile is “A unit of distance defined internationally as 1852 meters (6076.1 feet). It corresponds approximately to a minute of latitude 44 degrees. See “Glossary to Terms” in Jonathan I. Charney & Lewis M. Alexander (eds.), International Maritime Boundaries Vol. 1 (The American Society of International Law) (Martinus Nijhoff Publishers, Dordrecht/Boston/London, 1993) p.XX

[20] United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397, reprinted in UNITED NATIONS, OFFICIAL TEXT OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA WITH ANNEXES AND INDEX, UN Sales No. E. 83. V.5 (1983) (entered into force Nov. 16, 1994) (Hereinafter “UNCLOS”). As a result of the importance of the continental shelf,  the law of the sea has developed reasonably detailed rules governing the rights to explore and exploit the resources of the region. These customary rules are mirrored and developed in the UNCLOS. Certainly, for state parties to the UNCLOS this controversy has now been settled. For other states, it may be that customary international law has developed to such an extent that the CSC 1958 is now made redundant. See, M. Dixon & R. McCorquodale Cases & Materials on International Law, supra note 1 p.360   

[21]The UNCLOS thus recognizes that the continental shelf is a geological as well as a legal concept. This definition thus enables costal states whose natural prolongation is more than 200 nautical miles to still exploit those resources though, in conjunction with the International Sea Bed Authority. Unfortunately, Nigeria has not been blessed with such a broad shelf. See Egede, E., The Outer Limits 0f the Continental Shelf: African States and the 1982 Law of the Sea Convention ODIL 2004 157-178 at p. 160

[22] Libya/Malta Continental Shelf case (1985) ICJ Rep. 13

[23] North Sea Cases, para 96

[24] North Sea Cases, para 96

[25] Aegian Sea Continental Shelf Case, ICJ REP.3 (1978) para.86

[26] This Sovereignty i.e., the political and legal concept relating to supreme or ultimate authority in a state, may be acquired by a state through Occupation, Prescription, Cession and conquest.  However, conquest has been outlawed by Article 2 of the United Nations Charter on the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with Charter of the United  Nations, General  Assembly, Annex to Resolution 2625 (XXV), 24 October 1970. Global outrage and reaction of Iraq’s occupation of Kuwait in 1990 is still, fresh in our memories.

[27] The rationale for such exclusion was succinctly provided by the U.S Supreme Court in United States V. California, 332 U.S. 19 (1947) when the court pointed out that; “The very oil about which the state and nation here contend might well become the subject of international dispute and settlement……..And as peace and world commerce are the paramount responsibilities of the nation, rather than an individual state, so, if wars come, they must be fought by the nation. The state is not equipped in our constitutional system with the powers or the facilities for exercising the responsibilities which would be concomitant with the dominion it seeks.” One may easily recall the  Bakassi peninsula dispute which was contested between the sovereign state of Nigeria and Cameroon and not by any component  states. For an overview of this controversy see, Asiwaju, A. I., The Bakassi Peninsula Crisis; An Alternative to War and Litigation, in Boundaries and Energy: Problems and Prospects, Gerald Blake Et al (eds.) (Kluwer Law International, London/The Hague/Boston, 1998) pp.251-273. (The dispute has been however settled by the International Court of Justice.) All disputes over the continental shelf has always been contested by sovereign states. Intractable disputes are exemplified by the overlapping claims to the Spratly islands in the South China Seas, where China, Taiwan, Philippine, Malaysia, Brunei and Vietnam have made various claims over the same territory. Another example closer to home is that, of all the 39 coastal states in states in Africa, none of the coastal claim was made by any component state. See supra note 21  p. 157.

[28] However, even in those states, jurisdiction over the resources of the continental shelf as we shall see later is held by the sovereign state and not the component states.

[29] 135 C.L.R 337 (Austl.1975).

[30] 332 U.S. 19 (1947)

[31] 3 HOW (US) 212

[32] I.e., freedom of the Seas where a Sea or other navigable water is open to all nations. This concept was propounded by Grotius in his 1909 great work “Mare Liberum” when he tried to vindicate the claims of the Dutch East India Company, by whom he was employed, to trade in the Far East despite the monopoly of trade  in the area claimed by the Portuguese at that time. See Churchill & Lowe supra note 4 p. 4

[33] Frankfurter’s contention is however untenable as the meaning of dominion when translated from Latin into English, means “Ownership” i.e. such ownership that  is “single and indivisible, absolute and exclusive.” see L.B. Curzon , Dictionary of Law (fifth ed.) (Financial Times/Pitman Publishing, London/San Francisco/Kuala Lampur/Johanesburgh, 1998) p. 125. See further Black’s Law Dictionary, p 524-525 supra note1

[34] 339 U.S. 699 (1950)

[35] I.e., a Sea or other body of navigable water that is under the jurisdiction of a particular nation and is closed to other nations. See Black’s Law Dictionary, supra note 1 p 524-525.

[36] 339 U.S.707 (1950)

[37] R.X. Zedalis, supra note 8 pp. 20-1

[38]1953,43 U.S.C .

[39] See, http://www.mms.gov/aboutmms/ocsdef.htm Last visited on 06/04/05. For a detailed discussion of resource ownership, see, Smith, E.A., Ownership of Mineral Resources   in International Petroleum Transactions (Second ed.).  Smith, E.A., (eds.) (Rocky Mountain Mineral Law Foundation, Denver, Colorado, 2000) pp. 203-336

[40] OCSLA,  SS.1332 (1) Source: LII (Legal Information Institute) US CODE COLLECTION, TITLE 43-CHAPTER 29 SUBCHAPTER 111 OUTER CONTINENTAL SHELF LANDS, http:www://straylight.law.cornell.edu/uscode/html/uscode43/usc_sec_43_00001332----000-.html

Last visited 06/05/04. Several other states have similar regime over the continental shelf ie, Article 2, para.2 of the Chinese Economic Zone and Continental Shelf Act states that “ The continental shelf of the Peoples Republic of China comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured when the outer edge of the continental margin does not extend up to that distance” With respect to jurisdiction, Article 4 para.1 states that “The peoples Republic of China shall exercise sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources.” These provisions seems in line with what the UNCLOS provides. See http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/chn_1998_eez_act.pdf last visited 06/05/05; Section 1 (1)of the United Kingdom Continental Shelf Act of 15th April, 1964 provides that “Any rights exercisable by the United Kingdom outside territorial waters with respect to the seabed and subsoil and natural resources, except in so far as they are exercisable in relation to coal, are hereby vested in her majesty.” See http:www://un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/GBR_1964 Act.pdf. last visited, 06/04/05; New Zealand also defined its continental shelf in terms of the provisions of the UNClOS, See http://www.mfat.govt.nz/support/legal/continentalshelf.html, last visited, 06/04/05

[41] Reference re D.L.R. (2D) 353,

[42]“Sovereignty” is redolent of territorial sovereignty and therefore operates in all three dimensions of land, sea and atmosphere. “Sovereign rights” on the other hand, extend only to the resources of the seabed and subsoil under the continental shelf regime and the superjacent waters up to 200 nautical miles. The UNCLOS transforms sovereignty by disaggregating the concept into bundles of rights ranging from “sovereign rights” (Arts. 77(1)(a)) to “exclusive rights” (Arts. 69,81), “jurisdiction and control” (Art.79(4)), which may be shared with other states in the same spatial dimension such as the continental shelf and the E.E.Z. See Ong D.M., Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law? AJIL 93 (1999) 771-804 p. 777 (referring to Elisabeth Mann Borgese, Ocean Governance and the United Nations 17-18 (Dalhousie University Centre for Foreign Policy Studies, 1995)

[43] However, in the case of territorial waters, the coastal states rights are subject to the rights of ships of other states to engage in innocent passage.

[44] Art. 78 UNCLOS provides that “The exercise of rights of the coastal state over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and other freedoms of other states as provided in this convention.”

[45] See generally Art. 82 Ibid.

[46] Of course, principles for example, concerning continental delimitations are yet settled by international law. For example, the natural prolongation principle of continental shelf delimitation propounded by the International Court of Justice in the North Sea Cases was undermined by the adoption of the equidistance principle of delimitation in the subsequent cases adjudicated before the International Court of Justice. And despite the controversy over these principles, some publicists like Wijnand Langeraar have been canvassing for  another principle of continental shelf delimitation called the  equiratio principle. For detailed discussion of the concept see Langeraa, W., Delimitation of Continental Shelf Areas: A New Approach HeinOnline 17 J. Mar. L. & Com. (1986) 389-406. Specifically at pp 393-5. The uncertainty in the application of the principles  of delimitation was aptly manifested by the International Court Justice in its  verdict over the Bakassi Peninsula. However, the painful consequences of ceding territories over which Nigeria exercised a de-facto jurisdiction could have been averted if Nigeria had considered the submission of Professor Asiwaju in 1996 that “Problem-Solving strategies have a far greater chance than the military or litigation alternatives of reaching the roots of the characteristically complex geopolitical and socio-economic problems that arise from the exploration and exploitation of resources in regions where nations meet.” Because, “…a purely legalistic solution to the dispute stands little chance of acceptance, if not by one government or the other, then by the people in the areas themselves.” To Asiwaju, “because the dispute is resourced based and because of the transborder location of the resource within a wider region, the problems cannot fully be tackled simply by drawing or redrawing of maps or the making or remaking of boundaries in order to separate and divide the inherently inseparable and indivisible.” See Asiwaju generally, supra note 27 pp. 251-74. In contrast to Nigeria, Australia, realising the unpredictability of the principles of delimitation, opted for a Joint Development arrangement with East Timor over their disputed Timor Gap. Still, to pre-empt East Timor’s resort to the International Court of Justice, Australia excluded from the compulsory jurisdiction of the International Tribunal of the Law of the Sea “any dispute relating to the exploitation of any disputed area adjacent to any such maritime zone pending delimitation.” See Abba, F.A. Is Joint Development of Straddling Hydrocarbons Mandated Under International Law. (Unpublished LLM Dissertation, CEPMLP University of Dundee, 2003) at p. 51 foot note 75 referring to- Triggs, G., and Bialek D., The New Timor Sea Treaty and Interim Arrangement for Joint Development of Petroleum Resources of the Timor Gap, The University of Melbourne Faculty of Law: Public Law and Legal Theory Research Paper No. 45 (2003) p. 34. Source: http://sssrn.com/abstract=423323. Last visited 01/07/03.