Nigeria's Urgent Need For A Continental Shelf Regulation

On the 7th of May, 2009, Nigeria Submitted to the Commission on the Limits of the Continental Shelf (CLCS) in accordance with Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea (1982) that the limits of the Continental Shelf would extend beyond 200 Nautical Miles from the baselines from which the breadth of the territorial sea is measured. Therefore, although it wishes to extend beyond the allowed 200 Nautical Miles, it has no definitive measure as to the particular measurement on how far the Continental Shelf is to be measured. It is pertinent to note that the UNCLOS Convention entered into force in Nigeria on the 16th of November, 1994  and has ratified but is yet to draft an indigenous body of rules concerning the Continental Shelf. 
The continental shelf is defined as the natural prolongation of the land territory to the continental margin's outer edge, or 200 nautical miles (370 km) from the coastal state's baseline, whichever is greater. A state's continental shelf may exceed 200 nautical miles (370 km) until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometres; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles) beyond the 2,500-meter isobath (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.

BRIEF HISTORY
The seas were generally characterized by freedom of use from antiquity until the 13th century. From the 13th century onwards, a debate grew as to the geographic and lawful extents of State power in bordering seas. 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 to justify their dominion over the earths oceans. This doctrine of mare clausum held that the sea was capable of being subject to State sovereignty.

Against the doctrine of mare clausum was the doctrine of mare liberum, by which other states considered the sea as a res communis and therefore incapable of being subject to any States' sovereignty. Eventually, the ocean waters adjacent to the coastline became the subject of State claims of sovereignty, the methods of delimiting 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.

By 1926, the idea that parts of the continental shelf (at least within territorial waters) could be subject to a State's ownership was, in the words of the Rapporteur of the League of Nations Subcommittee of experts on territorial waters, a "universally accepted legal conception". By reason of its sovereign rites over the territorial sea, the Draft Convention on territorial waters proclaimed at Article 11 the littoral States' sole right of taking possession of the riches of the sea, the bottom and the subsoil, such riches being said by the rapporteur to include "coral reefs, oil wells, and tin mines".

In 1943, the American Secretary of Interior, Harold Ickes, recognizing the United States' need for natural resources to fight the Second World War, recommended that the United States should claim the resources of the Continental Shelf and Superjacent waters. A little over two years later, on 28th September 1945, President Truman signed two proclamations covering respectively, coastal fisheries and the subsoil and seabed of the continental shelf.

The continental shelf proclamation (commonly called the 'Truman Proclamation') is widely regarded as a key development in the doctrine of the continental shelf and 'the decisive event in State practice' in this area. The Truman Proclamation claimed control over the 'naturally appurtenant' continental shelf contiguous to the United States Coast and not sovereign rights over the area. In following the laid down example, Australia went a little too far by claiming sovereign rights over that territory which in turn meant hindrance on freedom from navigation and over flight by other States.

 These incompatible approaches and the natural desire of States to expand their sovereign claims drove efforts to rationalize international law in this area. These efforts became formalized first in the work of the International Law Commission (ILC) and then in the Convention on the Continental Shelf of 1958 (aka 1958 Continental Shelf Convention).

The ILC first met to codify the international law of the sea in 1949 and, recognizing its increasing economic and social importance, introduced a draft  article on the Continental Shelf in 1951. However, the definition of the Continental Shelf based on the draft article was controversial in nature thereby attracting criticism. it therefore 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 to note which was propounded under the 1958 Continental Shelf Convention is the fact that it crystallized as law the idea that rights over the continental shelf are not dependent on a State's proclamations nor do they require occupation.

However, the proper execution of these treaties and agreements met quite a number of hindrances to name a few:

1. Decolonization: It can never go unnoticed that many former colonies had played no part in creating the system of treaties and customary international law to which they were now subject as equal members of the international community. This was evident after the United Nations had adopted the Resolution 1514 on granting of independence to Colonial Countries and Peoples. They consequently felt that the traditional law of the sea, like many areas of international law, should change to take their interests and positions into account.
2. Low Participation Rates: Low participation rates in the 1958 Continental Shelf Convention could be seen as both a consequence of States' dissatisfaction with the regime and a cause of it. Also troubling was the fact that the 1958 Continental Shelf Convention left a number of critical issues unresolved. This incomplete nature and factors such as concern for the environment and the over exploitation of fisheries (sometimes by foreign fishing fleets) were also crucial in motivating changes to the overall law of the sea.

Putting all these into consideration, the United Nations Convention on the Law of the Sea III was first convened in New York on 3rd December 1973, and after 10 more sessions, resulted in the creation of the 1982 UN Convention on the Law of the Sea. Over the course of about 10 years, more than 160 States, specialized UN Agencies, non-governmental organizations (NGO's) and other observers have participated in these negotiations and the Convention.

The presently and widely recognized legal definition of the continental shelf is found in Article 76, Paragraphs 1 to 3 of UNCLOS. It provides that:

1. The continental shelf of a coastal state 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 where the outer edge of the continental margin does not extend up to that distance. 
2. The continental shelf of a coastal state shall not extend beyond the limits provided for in paragraphs 4 to 6. 
3. The continental margin comprises the submerged prolongation of the land mass of the coastal state, and consists of the seabed and subsoil of the shelf, the slope, and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

 There are several rights associated with a coastal state's continental shelf, Article 77 of the UNCLOS permits the coastal state to exercise exclusive sovereign rights over the continental shelf for the purpose of exploitation and exploration of its natural resources. these rights are such that even if the coastal state does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal state.

The natural resources of the continental shelf include "mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvest-able stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or subsoil".

Other rights associated with the continental shelf include Article 80 which affords the coastal state the exclusive rights to construct artificial islands, installations, and structures. Article 81 grants the coastal states the exclusive rights to authorize and REGULATE drilling on the continental shelf.

Coastal State's arguably also have the right to legislative and enforcement jurisdiction over the continental shelf under Articles 111(2) of the UNCLOS; although these rights are not without limit and should be exercised in accordance with the provisions of the UNCLOS. 

THE MULTIFACETED VALUE OF THE SHELF.
The continental shelf is a strategically important location for military purposes and has been proven to be valuable as a source of fisheries, minerals, carbon energy, resources and scientific discoveries. These factors are further elaborated below:

1. Sedentary Fisheries: Sedentary fishes on the shelf, for example, have long been exploited in traditional economies to provide sustenance, trinkets and religious artifacts. Such fisheries have been important enough to attract both municipal legislation and international conflict. Australia for example passed pearling industry legislation in the early 1950's in response to anxieties over the harvesting rates of Japanese vessels.
2. Bio-prospecting: The scale and diversity of life on the shelf is thought to be vast but just how vast remains an open question. Estimates of the extent of deep ocean diversity vary from as low as 500, 000 species to as many as 100 million species. This rich target for research or bio-prospecting has attracted attention of major pharmaceutical firms hoping to develop drugs from marine resources for uses including the fighting of HIV, bacterial infections, cancer, and malaria.
3. Minerals: In 1967 Ambassador Pardo delineated the various resources already then being drawn from the continental shelf. In addition to the tin, diamonds, phosphorite, sulphur, coal, iron, and hydrocarbons then being exploited, the global volumes of both producing and potential resources are today greater than ever. Placer deposits have been discovered on the shelf containing metals, including tin, titanium, chromium, and zirconium; subsoil brine pools have also been found containing concentrations of lead, zinc, gold and silver; volcanic springs have been found with high concentrations of iron, zinc, copper, silver, and gold; and naturally occurring manganese nodules continue to attract interest.
4. Carbon Energy Resources: As a component of the economic value of the shelf, oil and gas reserves have been estimated to represent about 90% of the value of exploited seabed minerals. As a component of global energy production too, the shelf is vital: offshore oil wells produced about 30% of the 85 million barrels consumed per day in 2010. Methane hydrates, or gas trapped in a water/ice lattice structure, are also of potentially enormous value. It has been estimated that methane hydrates contain double the combustible carbon of all other fossil fuels. 

PRESENT DAY DILEMMA
With all that's been said and done, presently, Nigeria doesn't have a standing body of rules or laws that efficiently regulates the activities that occur within the Continental Shelf of the State. The degree to which the Nigerian economy has suffered due to incompetence and the lack of legal framework can never be overemphasized.

Presently, Nigeria is just recovering from the very menacing and violent experiences due to the presence of repeated violent terrorist attacks from boko haram and the likes. One of the major problems that dragged us back in fighting insurgencies in this country was the lack of efficient legal framework. the firearms act (which will be discussed in my next publications) is dated back to 1959/2004 and from all indications, is in dire need of effective amendment to battle the present day situation of illicit proliferation of firearms and the sky rocketing level of crime in the country.

That being said, one begins to wonder why with all the available resources that could be discovered in the continental shelf of a coastal state, the Federal government is yet to establish a proper set of guidelines to regulate the activities within the continental shelf. The major and most important use of the continental shelf is the installation of oil rigs and artificial islands by oil companies and the likes in this country and it doesn't go beyond that.

It was due to ignorance that Africans dominated the market during slave trade; it was again due to ignorance that we were the colonized. It is presently due to ignorance that we allow avenues of improving our economy and increasing resources to slip through our fingers because we lack the wherewithal to establish and commit to a development plan.

The maritime sector is responsible for about 40% of the annual GDP in Nigeria. Words cannot describe how much more can be discovered, how many job opportunities can be created and how much will be attributed to our achievements if and when we decide that alongside oil and gas, there are so many other avenues available for development.

Do not be taken away when expatriates arrive the country in the name of developing our economic sectors. I put it to you that despite the hardship we go through in this country, people still come in to invest because there is an over flowing of lacunae in the daily administration of the different sectors in this country. The expatriates and investors who no more discover these loop holes and the gaps that we leave open, then take advantage and sell back to you what is rightfully; and even going as far as taking credit for your own labor. The sooner we pay attention to these issues, the better.