By Joy Asanga for Financial Nigeria
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.
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 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.
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 bio-prospecting, 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, Wilāyat Gharb Ifrīqīyyah (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 oil-producing 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.
Joy Asanga has an LL.M. from the International Maritime Law Institute, Malta, established under the auspices of the International Maritime Organization, a specialised agency of the United Nations. This article was first published in the October 2016 edition of Financial Nigeria magazine.