An ur­gent need for con­ti­nen­tal shelf reg­u­la­tion in Nige­ria

Financial Nigeria Magazine - - Contents - By Joy Asanga

On May 7, 2009, Nige­ria made a sub­mis­sion to the United Na­tions Com­mis­sion on the Lim­its of the Con­ti­nen­tal Shelf (CLCS) stat­ing its in­tent for an ex­ten­sion of the con­ti­nen­tal shelf be­yond 200 nau­ti­cal miles from Nige­ria's coast­line. Although Nige­ria sought a con­ti­nen­tal shelf ex­ten­sion in ac­cor­dance with Ar­ti­cle 76, para­graph 8 of the UN Con­ven­tion on the Law of the Sea (UNCLOS), it could not de­fine the co­or­di­nates of the outer bound­ary of the shelf. Fur­ther­more, the coun­try has yet to draft an in­dige­nous body of reg­u­la­tions on the util­i­sa­tion of its con­ti­nen­tal shelf, even though it rat­i­fied the UNCLOS as far back as Novem­ber 16, 1994.

The le­gal con­ti­nen­tal shelf is de­fined as the seabed or "ter­ri­to­rial wa­ters" – 200 nau­ti­cal miles (370 km) from the "base­line" of its land bor­ders – over which a State ex­er­cises sov­er­eign rights. The shelf may ex­tend be­yond a dis­tance of 200 nau­ti­cal miles, but may not ex­ceed 350 nau­ti­cal miles (650 kilo­me­tres; 400 miles) of the base­line. Un­der Ar­ti­cle 77 of the UNCLOS, the State has exclusive rights with re­gard to the ex­plo­ration and ex­ploita­tion of min­eral re­sources, in­clud­ing oil and gas de­posits, and bi­o­log­i­cal re­sources of the seabed. The airspace above the con­ti­nen­tal shelf is also re­garded as part of the shelf it­self.

Brief his­tory

Un­til the 13th cen­tury, there ex­isted no exclusive rights to the use of the seas. But from that pe­riod on­wards, a de­bate en­sued about ter­ri­to­rial claims of bor­der­ing wa­ter bod­ies by States. By the 1600's, two fun­da­men­tally dif­fer­ent con­cep­tions of the na­ture of ocean spa­ces vied for dom­i­nance. On the one hand were States such as Spain and Por­tu­gal, which re­lied upon pa­pal bulls – char­ters is­sued by the Pope – to jus­tify their do­min­ion over the oceans. This doc­trine of mare clausum ef­fec­tively es­tab­lished that the sea could be placed un­der the ju­ris­dic­tion of a State.

But against the mare clausum pol­icy was the doc­trine of mare liberum, by which other States con­sid­ered the sea as a res com­mu­nis – mean­ing a com­mon her­itage of all hu­mankind – and, there­fore, in­ca­pable of be­ing sub­ject to any States' sovereignty. Even­tu­ally, the ocean wa­ters ad­ja­cent to coast­lines be­came the sub­ject of ter­ri­to­rial claims by sov­er­eign States. The meth­ods of de­lim­it­ing own­er­ship of those wa­ters de­vel­oped to in­clude the dis­tance that the hu­man eye could see and the dis­tance that coastal ar­tillery could fire (the so called "canon shot rule"). In lit­tle to no time, the 3 nau­ti­cal mile rule was gen­er­ally ac­cepted as stan­dard mea­sure­ment for ter­ri­to­rial wa­ters.

In 1926, the idea that parts of the con­ti­nen­tal shelf could be un­der a State's own­er­ship was, ac­cord­ing to the Rap­por­teur of the League of Na­tions sub­com­mit­tee of ex­perts on ter­ri­to­rial wa­ters, a "uni­ver­sally ac­cepted le­gal con­cep­tion." (The IMLI Man­ual on In­ter­na­tional Mar­itime Law: Vol­ume I: the Law of the Sea). By 1943, Harold Ickes who was the Unites States Sec­re­tary of In­te­rior, rec­om­mended that the coun­try needed to claim the nat­u­ral re­sources of the con­ti­nen­tal shelf in or­der to fight the Sec­ond World War. About two years later, Pres­i­dent Harry Tru­man signed two procla­ma­tions cov­er­ing coastal fish­eries as well as the sub­soil and seabed, re­spec­tively, of the con­ti­nen­tal shelf. The Tru­man Procla­ma­tion claimed con­trol over the 'nat­u­rally ap­pur­tenant' con­ti­nen­tal shelf ad­ja­cent to

the U.S. coast but not sov­er­eign rights over the area. Fol­low­ing this ex­am­ple, Aus­tralia went a lit­tle too far by claim­ing sov­er­eign rights over its con­ti­nen­tal shelf which in turn meant a hin­drance on nav­i­ga­tion.

These in­com­pat­i­ble ap­proaches and the nat­u­ral de­sire of States to ex­pand their sov­er­eign claims over the seas drove ef­forts to ra­tio­nal­ize in­ter­na­tional law in this area. These ef­forts were first for­mal­ized in the work of the In­ter­na­tional Law Com­mis­sion (ILC) and then in the Con­ven­tion on the Con­ti­nen­tal Shelf of 1958 (also known as 1958 Con­ti­nen­tal Shelf Con­ven­tion). The ILC first met to cod­ify the in­ter­na­tional law of the sea in 1949. Hav­ing rec­og­nized the in­creas­ing eco­nomic and so­cial im­por­tance of the seas, the Com­mis­sion in­tro­duced a draft ar­ti­cle on the Con­ti­nen­tal Shelf in 1951. Its def­i­ni­tion of the con­ti­nen­tal shelf was con­tro­ver­sial thereby at­tract­ing crit­i­cism. The ar­ti­cle un­der­went re­draft­ing un­til it was fi­nally ac­cepted in 1957 and cod­i­fied into the 1958 United Na­tions Con­ven­tion on the Law of the Sea. A key re­form of note un­der the 1958 Con­ti­nen­tal Shelf Con­ven­tion was the crystallization of the idea that rights over the con­ti­nen­tal shelf are nei­ther de­pen­dent on a State's procla­ma­tions nor do they re­quire oc­cu­pa­tion. (T. Treves, United Na­tions, 2008).

The Law of the Sea III was first con­vened in New York on De­cem­ber 3, 1973. Af­ter 10 more ses­sions, with more than 160 States, spe­cial­ized UN Agen­cies, non-gov­ern­men­tal

The neg­li­gence in reg­u­lat­ing ac­tiv­i­ties in such a strate­gic lo­ca­tion has had reper­cus­sions to our na­tional se­cu­rity.

or­ga­ni­za­tions (NGO's) and other ob­servers par­tic­i­pat­ing, the UNCLOS was es­tab­lished in 1982. Other rights as­so­ci­ated with the con­ti­nen­tal shelf are in­cluded in Ar­ti­cle 80, which af­fords a coastal State the exclusive sov­er­eign rights to con­struct ar­ti­fi­cial is­lands, oil in­stal­la­tions, and struc­tures in the shelf. Ar­ti­cle 81 grants the coastal states the exclusive rights to au­tho­rize and reg­u­late drilling on the con­ti­nen­tal shelf.

Strate­gic im­por­tance

The con­ti­nen­tal shelf is strate­gi­cally im­por­tant for naval ac­tiv­i­ties and na­tional se­cu­rity, and it has been proven to be a valu­able source of fish­eries, min­er­als, car­bon en­ergy, re­sources and sci­en­tific dis­cov­er­ies. Some of the ar­eas of the shelf's strate­gic im­por­tance are fur­ther elab­o­rated be­low:

Seden­tary fish­eries: These have long been ex­ploited to pro­vide sus­te­nance. They are also used in mak­ing jew­el­ries and as re­li­gious ar­ti­facts. Such fish­eries have been im­por­tant enough to at­tract both mu­nic­i­pal leg­is­la­tion and in­ter­na­tional con­flict.

Bio-prospect­ing: Deep ocean diver­sity is es­ti­mated to vary from about 500,000 to 100 mil­lion species. Aquatic life in the con­ti­nen­tal shelf is a sub­ject of bio­prospect­ing, which has at­tracted at­ten­tion of ma­jor phar­ma­ceu­ti­cal firms hop­ing to de­velop drugs from ma­rine re­sources for treat­ment of var­i­ous ail­ments in­clud­ing bac­te­rial in­fec­tions, cancer, and malaria.

Min­er­als: Tin, di­a­monds, phos­pho­rite, sul­phur, coal, iron, and hy­dro­car­bons are some of the min­eral re­sources be­ing ex­ploited from the con­ti­nen­tal shelf. Other de­posits that have been dis­cov­ered on the shelf con­tain ti­ta­nium, chromium, and zir­co­nium, zinc, gold, and sil­ver, among oth­ers.

En­ergy Re­sources: Oil and gas re­serves have been es­ti­mated to ac­count for about 90 per­cent of the value of ex­ploited seabed min­er­als. Off­shore oil wells pro­duced about 30 per­cent of the 85 mil­lion bar­rels of oil out­put per day in 2010. Also, it has been es­ti­mated that huge amounts of meth­ane are stored around the world in the seabed in the form meth­ane hy­drates – a cage-like lat­tice of ice in which mol­e­cules of meth­ane, the chief con­stituent of nat­u­ral gas, are trapped. These hy­drates con­tain dou­ble the com­bustible car­bon of all other fos­sil fu­els.

As ob­served above, Nige­ria sub­mit­ted a wish to "ex­tend" its con­ti­nen­tal shelf but the gov­ern­ment has not sig­ni­fied "to what ex­tent" in nau­ti­cal miles this ex­ten­sion will go. Ac­cord­ing to Robert Van De Poll, a Vis­it­ing Fel­low at the In­ter­na­tional Mar­itime Law In­sti­tute of the Uni­ver­sity of Malta, the United Na­tions CLCS sub-com­mit­tee met and did an ini­tial re­view of Nige­ria's sub­mis­sion on Au­gust 31-Septem­ber 4, 2015, mak­ing fol­low-up rec­om­men­da­tions. How­ever, not much has hap­pened since then.

This is not sur­pris­ing be­cause there is still an ex­ist­ing mar­itime bound­ary dis­pute be­tween Nige­ria, Cameroon and Equa­to­rial Guinea. For this rea­son, the three coun­tries were ad­vised that in or­der to op­ti­mise the ben­e­fits of the con­ti­nen­tal shelf, they all need to sub­mit an ex­ten­sion no­ti­fi­ca­tion which will stop at an equal point be­tween the three coun­tries.

In the mean­time, Nige­ria does not have a stand­ing body of laws that ef­fi­ciently reg­u­late the ac­tiv­i­ties that oc­cur within its con­ti­nen­tal shelf. This fail­ure in im­ple­men­ta­tion a le­gal frame­work has limited its abil­ity to fully ex­ploit the nat­u­ral and bi­o­log­i­cal re­sources in the con­ti­nen­tal shelf, amount­ing to a sig­nif­i­cant loss to the Nige­rian econ­omy. The dom­i­nant use of the con­ti­nen­tal shelf con­tigu­ous to Nige­ria's coast­lines has been the in­stal­la­tion of oil rigs and con­struc­tion of ar­ti­fi­cial is­lands by oil com­pa­nies.

The neg­li­gence in reg­u­lat­ing ac­tiv­i­ties in such a strate­gic lo­ca­tion has had reper­cus­sions to our na­tional se­cu­rity. Nige­ria now cur­rently has two ma­jor se­cu­rity threats. One is the Is­lamist ex­trem­ist group, Wilâyat Gharb Ifrîqîyyah (Is­lamic State's West Africa Prov­ince) or Boko Haram, who are re­spon­si­ble for the deaths of over 20,000 peo­ple in Nige­ria. The other threat is the mil­i­tancy in the oil­pro­duc­ing Niger Delta re­gion. The mil­i­tants have dis­rupted the coun­try's oil out­put by dec­i­mat­ing oil in­stal­la­tions. The in­sur­gen­cies and other vi­o­lent crimes in this coun­try have largely been ef­fec­tive due to the pro­lif­er­a­tion of Small Arms and Light Weapons (SALW) brought about by the weak reg­u­la­tory en­vi­ron­ment for firearms. This state of af­fairs can be linked to the ab­sence of reg­u­la­tion of the con­ti­nen­tal shelf which pro­vides an op­er­a­tive route for il­licit traf­fick­ing of firearms through our wa­ter­ways by sea pi­rates. I am of the opin­ion that the Nige­rian Firearms Act (as amended in 2014) still needs fur­ther amend­ment to meet up with the cur­rent es­ca­la­tion in the traf­fick­ing of il­licit arms and am­mu­ni­tions across bor­ders, es­pe­cially through the sea.

The mar­itime sec­tor ac­counts for about 40 per­cent of the coun­try's Gross Do­mes­tic Prod­uct (GDP). As part of its devel­op­ment plan, the Nige­rian gov­ern­ment can­not af­ford to ig­nore ar­eas of the econ­omy with sig­nif­i­cant po­ten­tial for eco­nomic growth and job cre­ation such as the con­ti­nen­tal shelf. Be­yond its util­i­sa­tion in the oil and gas sec­tor, the strate­gic im­por­tance of the con­ti­nen­tal shelf for eco­nomic ad­vance­ment and na­tional se­cu­rity can­not be overem­pha­sized.

From Left: Cameroo­nian Pres­i­dent Paul Biya and Nige­rian Pres­i­dent Muham­madu Buhari

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