Nature of Continental Shelf Rights under International Law

By Kiran Tandon, Hidayatullah National Law University

 Editor’s Note: A continental shelf is the edge of a continent that lies under the ocean. It extends from the coastline of a continent to a drop-off point called the shelf break. These occupy about 7% of the area of the world’s oceans but their economic importance is significantly greater. Therefore, shelf seas are of national importance not just in the geographical sense, but also in the legal, social and economical arena. As a consequence, there has been a need for the development of natural resources of the continental shelf without being detrimental to competing policies. Ergo, these have been included under International law which confirms each coastal state’s right to explore and exploit the natural resources of its continental shelf both through treaty and customary usage.

INTRODUCTION

In ancient times, navigation and fishing were the primary uses of the seas. As man progressed, pulled by technology in some instances and pushing that technology at other times in order to satisfy his needs, a rich bounty of other resources and uses were found underneath the waves on and under the ocean floor – minerals, natural gas, oil, sand and gravel, diamonds and gold.

A continental shelf is a term that refers to the ledges that protrude from the continental land mass into the ocean. This is enveloped with a comparatively shallow zone of water (approximately 150-200 meters deep). This eventually mixes into the depths of the ocean which is around thousands of meters deep. These shelves occupy around eight percent of the total area of ocean water and their size varies relatively from place to place. It is the extended boundaries of every continent and the adjoining coastal plain. This was a component of the continent during glacial periods, but remains below the sea during interglacial periods. The continental shelves are loaded with oil and natural gas resources and quite frequently are a host to huge scale grounds for fishing.

There are various rights and liabilities upon coastal states and their extent .Further various conventions – Geneva convention, 1958 and convention on the law of the sea, 1982 have made the acceptance of these continental shelf rights by the states within less than thirteen years and is very important for the regulation of the exploration and exploitation of the resources of continental shelf.

1. CONTINENTAL SHELF

1(A) Meaning of Continental Shelf

Shelf seas occupy about 7% of the area of the world’s oceans but their economic importance is significantly greater.[i] A continental shelf is the edge of a continent that lies under the ocean.[ii]  A continental shelf extends from the coastline of a continent to a drop-off point called the shelf break. From the break, the shelf descends toward the deep ocean floor in what is called the continental slope.[iii] The continental shelf is an important maritime zone, one that holds many resources and vital habitats for marine life. The majority of the world’s continental shelf is unknown and unmapped.[iv]

The term Continental Shelf first used in 1887 by Hugh Robert Mill[v]. The Continental Shelf is the gently sloping undersea plain between a continent and the deep ocean. The continental shelf is an extension of the continent’s landmass under the ocean. [vi]

1(B) Formation of Continental Shelf:

Over many millions of years, organic (remains of plants and animals) and inorganic (sediments) materials formed continental shelves.[vii]Continental shelves external link were formed in between glacial periods as the ocean flowed over the continents forming shallow areas along the coasts. About 18,000 years ago, during the height of the Pleistocene ice ages external link, much of what is now a continental shelf was actually above water.[viii] During interglacial periods, like today, the shelf is submerged under relatively shallow waters. The waters of the continental shelf are rarely more than 500 feet deep, compared to the open ocean which can be miles deep. [ix] Much of the continental shelf was exposed dry land during glacial periods.

1(C) Definition:

 Article 1 of the Convention on the Continental Shelf, 1958 defined the shelf based on its exploitability instead of depending upon the conventional geological definition, which referred to the seabed and subsoil of the submarine zones next to the coast but not within the territorial sea that extends to a depth of 200 meters or ‘beyond that limit to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas’.[x]

It is the submarine prolongation of a coastal state’s landmass to the outer edge of the continental margin. The continental shelf falls under the coastal state’s jurisdiction. Areas beyond the continental margin are, however, part of the international seabed area.[xi]

Why continental shelf is included in international law?

The continental shelf, in its geological sense, is very un-equally distributed around the continent. The importance of the continental shelf and the necessity for a special legal regime applicable to it, did not, however, become apparent until the question of the nature and extent of the coastal state’s rights to explore and exploit the natural resources of the continental shelf was given a new urgency by the discovery in the subsoil of the sea-bed of a mineral source of wealth, namely petroleum. Furthermore, through advances in engineering and scientific research, the submarine oil bearing strata became capable of exploitation and exploration by means of devices operating from the sea-bed of the high seas.[xii]As the importance of continental shelf was of national importance in arena of legal, geographical, social and economical, it was included in the international law.

Reason for not taking a fixed limit of continental shelf:

International Law Commission stating that the reason for its not adopting a fixed limit for the continental shelf (this limit being determined by the depth of the superjacent waters or, to be more exact, by a depth of two hundred meters) “coincides exactly with that at which the continental shelf, in the geological sense, generally comes to an end” is that “such a limit would have the disadvantage of instability.” “Technical developments in the near future,” the Commission continued, “might make it possible to exploit the resources of the seabed at a depth of over two hundred meters.”[xiii]Therefore, the extent is not limited to 200km nautical miles.

2. RIGHTS AND DUTIES OF COASTAL STATES

The waters above the continental shelves are of great importance for navigation and fisheries. Maritime shipping must of necessity use these waters. Because of the shallowness of the water fish are abundant and accessible. Submarine cables for communications might be laid on the sea-bed.[xiv]

International law, both through treaty and customary usage, confirms each coastal state’s right to explore and exploit the natural resources of its continental shelf. The concept of the continental shelf is a datum of nature presented as a medium for juridical technique; it tends to justify State jurisdiction over the exploration and exploitation of the natural resources of the bed and the subsoil of certain areas of the high seas.[xv] It is, however, incontestable that the right to exploit certain natural resources of the sea-bed and subsoil, such as pearls, corals, sponges, amber and chank, did come to be regarded as the monopoly of the coastal state if it chose to exploit them.

Proper characterization of continental shelf rights acquired under international law will also assist in treaty negotiations and in resolution of disputes among nations. Petroleum reservoirs straddling international boundaries provide perhaps the best illustration. Whether one coastal state can legitimately complain if an adjacent state extracts all the oil or gas from a reservoir which extends to its continental shelf depends upon the nature and extent of the rights of that state under international law.[xvi]

2(A): Rights of Coastal States

The area of continental shelf cannot be appropriated by the States, and therefore, States cannot exercise sovereignty over this state. They may exercise sovereignty rights to explore and exploit mineral, non-living resources of the sea-bed and subsoil and they are required to make payments or contributions annually with respect to all production at a site after the first–five years of production at that site. The rate shall increase by 1 per cent of the value for each subsequent year until twelfth year and shall remain at 7 percent thereafter. If coastal states does not explore or exploit shelf resources no other state may undertake these activities without its express consent.[xvii] However, “The rights of the coastal State over the continental shelf do not affect the regime of freedom of navigation on the high seas or that of the airspace above the superjacent waters or the Epicontinental Sea.”[xviii]

2(B): Rights of Other States in The Continental Shelf-

Other states have been given a few rights over the continental shelf. They are entitled to lay submarine cables and pipelines on the continental shelf with the consent of continental shelf. The coastal state may impose conditions for cables or pipelines.[xix]

2(C): Indian Position on Continental Shelf

Indian position on continental shelf has been made clear under Section 6 of the Maritime Zones Act of 1976.Part 1 of the section lays down that, “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 meters, or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas”. The Act also lay down under section 6, Para 3 that “the Union has:

  1. Sovereign rights for exploration, exploitation , conservation, and management of all resources;
  2. Exclusive rights and jurisdiction for the construction, maintenance or operation of artificial Islands, off-shore terminals, installations and other structures and devices necessary for the continental shelf or for convenience of shipping or for any other purpose.
  3. Exclusive jurisdiction to authorize, regulate and control scientific research
  4. Exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution”.

Continental Shelf and North Sea Continental Shelf Case:

The International Court of Justice declared the issues relating to continental shelf in a different way. It was held that the rights of the coastal state in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it, as an exercise of sovereign rights of the purpose of exploring the sea-bed and exploiting its natural resources. Hence, there is an inherent right.

3. CONVENTIONS ON CONTINENTAL SHELF

The concept of continental shelf acquired its importance when it was propounded by US President True man on September 28, 1945.While nations over the centuries have alternatively made expansive and narrow claims to the seas beyond their coasts, the origin of the modern doctrine is often said to be the Truman Proclamation of 1945, by which President Truman proclaimed:

“ Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.”[xx]

India claimed for the first time in 1955.It took less than thirteen years to accept the concept of extension of sovereignty powers over continental shelf.

3(A): Definition and Outer Limit of Continental Shelf –

Geologically Continental shelf may be defined as “the zone around the continent extending from the low water line to the depth at which there is usually a marked increase of declivity to greater depth.”[xxi] The Continental Shelf is the gently sloping undersea plain between a continent and the deep ocean. The continental shelf is an extension of the continent’s landmass under the ocean. The continental shelf extends outward to the continental slope and continental rise.

3(B): Geneva Convention, 1958-

In 1958, the first United Nations Conference on the Law of the Sea accepted a definition adopted by the International Law Commission, which defined the continental shelf to include “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 meters, or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas”.

It helped in interpreting the area of continental shelf according to their own convenience. The developed states applied the exploitation criterion.

 3(C): Continental Shelf under the Convention on the Law of the Sea, 1982-

It has defined continental shelf under Para I Article 76 , the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea to the outer edge of continental margin , to a depth of 200 meters,  where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas where  the outer edge of the continental margin.

Para 4 of the convention states that , the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either :

  • a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or
  • A line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope.

 In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base.

Para 5 of Article 76, states that the fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a) (i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 meter isobaths, which is a line connecting the depth of 2,500 meters.

Para 8 of Article 76, states that information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

Article 82 states that the payments and contributions shall be made annually with respect to all production at a site after the first five years of production at that site. Article 256 Paragraph 6, qualifies the consent regime obtaining within 200 miles.

Article 6(1) of the Geneva Convention of 1958 had provided that where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

In the case concerning the Continental Shelf Libya, Arab the International Court of Justice has not recognized the principle of equi-distance. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.[xxii]

CONCLUSION

Continental shelf seas – the marginal seas adjacent to the land – are the region where humanity predominantly interacts with the sea. Shelf seas occupy about 7% of the area of the world’s oceans but their economic importance is significantly greater and the social importance of shelf seas complements their economic value because the seas provide the main source for livelihood and a focus for many coastal communities. Development of natural resources of the continental shelf without being detrimental to competing policies should be made and its acceptance should be encouraged as a principle of international law. One means of achieving this will be to keep constantly in mind the two guiding principles formulated in 1950 by the International Law Commission of the United Nations: (1) to encourage the exploitation of the natural resources which the continental shelf offers to mankind, since it is estimated to constitute more than seven per cent of the world’s sea areas; (2) to avoid the imprisonment of legal thought within a rigid and formalistic conception of the doctrine of the freedom of the seas. Therefore, the characterization of the rights of a coastal state to continental shelf natural resources as real property rights is a well-developed doctrine.

 Edited by Kanchi Kaushik

[i] Available at : http://noc.ac.uk/science-technology/earth-ocean-system/coastal-seas/shelf-seas

[ii] Available at : http://education.nationalgeographic.com/education/encyclopedia/continental-shelf/?ar_a=1

[iii] Available at : http://noc.ac.uk/science-technology/earth-ocean-system/coastal-seas/shelf-seas

[iv] Available at : http://www.state.gov/e/oes/continentalshelf/

[v] Charles D. Hounshell And L Hugh Kemp,The Continental Shelf: A Study In National Interest And International Law

[vi]Available at :  http://www.boem.gov/Renewable-Energy-Program/Renewable-Energy-Guide/The-Continental-Shelf.aspx

[vii] Available at : http://education.nationalgeographic.com/education/encyclopedia/continental-shelf/?ar_a=1

[viii] Available at : http://marinebio.org/oceans/continental-shelves.asp

[ix] Available at : http://www.boem.gov/Renewable-Energy-Program/Renewable-Energy-Guide/The-Continental-Shelf.aspx

[x] Available at : http://www.spilmumbai.com/uploads/article/pdf/principle-of-delimitation-of-continental-shelf-areas-between-states-23.pdf

[xi] Available at : http://www.regjeringen.no/en/dep/ud/selected-topics/civil–rights/spesiell-folkerett/continental-shelf–questions-and-answers.html?id=448309

[xii] Available at : http://www.jstor.org/stable/pdfplus/743233.pdf?acceptTC=true&acceptTC=true&jpdConfirm=true

[xiii] Professor Gilbert Gidel for the 1952 Madrid Conference of the International Bar Association; translated from the French text by L. F. E. Goldie, Lecturer in Law at Canberra University College, The Continental Shelf.

http://www.jstor.org/stable/pdfplus/743233.pdf?acceptTC=true&acceptTC=true&jpdConfirm=true

[xiv] Charles D. Hounshell and L Hugh Kemp,The Continental Shelf: A Study In National Interest And International Law

[xv] Ibid.

[xvi] F. V. W. Penick , Halifax, Nova Scotia,The Legal Character of the Right to Explore and Exploit the Natural

Resources of the Continental Shelf, July/August 1985 Vol. 22 No. 4.

[xvii] Article 77, Para 2.  Central Law Publications , International Law and Human Rights, 143-144,18th Edition.

 [xix] Ibid.

[xx] Proclamation No. 2667, 10 Fed. Reg. 12,303 (1945).

[xxi] Wolfgang Friedman,’The Future of the Oceans’,p9.

[xxii] Central Law Publications , International Law and Human Rights, 139-141,18th Edition.

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