International Laws Of The Sea – Part 10

Pursuant to the earlier topic of Introduction to Maritime Law in Malaysia, published on 22 February 2021, in the coming series the basis and elements of International Laws of The Sea, will be explored.

Rights of coastal states and other states in the continental shelf

1. Rights of coastal states

   Coastal states have exclusive sovereign rights over the resources of the continental shelf for the purpose of exploring it and exploiting its natural resources, but they do not have full sovereignty over the shelf.
   Other states enjoy certain rights in the continental shelf of a coastal state. The functional sovereign rights of a coastal state in its shelf do not affect the legal status of the waters or that of the airspace above the continental shelf, where the freedoms of the high seas apply. The following are some of the salient features of the continental shelf.

   1. 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.
   2. It does not include the deep ocean floor with its oceanic ridges, or the subsoil thereof.
   3. The coastal state exercises sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources.
   4. The rights of coastal states in the continental shelf are exclusive in the sense that if a coastal state does not explore its continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal state.
   5. The rights of a coastal state over its continental shelf do not depend on occupation, effective or notional, or on any express proclamation.
   6. The natural resources that belong to coastal states in the continental shelf consist of the 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 harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.
   7. The rights of a coastal state over the continental shelf do not affect the legal status of the superjacent waters or the airspace above those waters.
   8. The exercise of the rights of a coastal state over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other states as provided for in the 1982 Convention.
      The relevant provisions concerning the rights of coastal states in the continental shelf are contained in Articles 77 and 78 of the 1982 Convention.

2. Rights of other states in the continental shelf

   As stated above, other states have certain rights in the continental shelf of a coastal state. For example, they are entitled to lay submarine cables and pipelines on it. Similarly, the functional sovereign rights of a coastal state in its shelf do not affect the legal status of the waters or that of the airspace above them. Thus, the freedoms of the high seas are preserved in the continental shelf for other states.
   The provisions regarding the freedom to lay submarine pipes and cables are contained in Article 79 of the 1982 Convention on the Law of the Sea, while Article 82 deals with payments by a coastal state in respect of the exploitation of the non-living resources of the continental shelf beyond 200 miles.
   Under Article 82, the coastal state is required to make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles from the baselines. However, a developing state that is a net importer of a mineral resource produced from its continental shelf (beyond 200 miles) is exempt from making such payments or contributions in respect of that mineral resource.
   The payments or contributions are to be made through the International Seabed Authority (ISA/ISBA), which distributes them to states parties to the Convention on the basis of equitable sharing criteria, taking into account the interests and needs of developing states, particularly the least developed and the land-locked among them.It would also be useful at this juncture to remember the relevant provisions in the 1982 Convention that set out to resolve any conflicts that may arise between the activities of the coastal state in its continental shelf and the continuing exercise of high seas freedoms in the superjacent waters above. Some of them are as follows: Articles 77, 78, 87–89, 116–120 and the Dispute Settlement provisions of the 1982 Convention on the Law of the Sea.

3. Delimitation of the continental shelf

   The principal requirement of the relevant provision of the 1982 Convention is simply to achieve an ‘equitable solution’, while the international case-law has elaborated on the applicable principles of maritime boundary delimitation aimed at achieving this ‘equitable solution’. What is an equitable solution would vary from one case to another and depend on various geographical, historical and other special circumstances existing between the states concerned.

   Article 83 of the 1982 Convention requires the coastal states concerned to effect the delimitation of their continental shelf 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. If no agreement can be reached between them then the 1982 Convention requires them to refer the matter to the dispute settlement mechanism provided for in Part XV of the Convention.
   As for the method of achieving an equitable solution, in some cases, such as the ‘Jan Mayen’ Case, the ICJ has adopted the formula of a equidistance or median line between opposite and adjacent coastal states. In cases such as Qatar v Bahrain and Cameroon v Nigeria, it has reaffirmed its preference for the adoption of the equidistance principle as the basic rule governing the delimitation of the maritime boundaries between states.
   However, in reaching its decision on delimitation, the ICJ has taken into account special circumstances such as the lengths of the relevant coasts of the coastal states. It should be borne in mind that more recent case-law has substituted the phrase ‘special circumstances’ that was part of the maritime delimitation provisions of the 1958 Geneva Convention on the Continental Shelf for the phrase ‘relevant circumstances’, although the circumstances in both cases are similar in nature.

4. New cases on maritime delimitation

   There have been a couple of major judgments delivered by the international courts and tribunals in the recent past concerning the development in the international law of maritime boundary delimitation. These judgments have sought to bring clarity to jurisprudence addressing delimitation of a state’s maritime entitlements located beyond 200 nautical miles from the state’s coastal baselines.
   In a string of disputes involving maritime jurisdiction in the Bay of Bengal, the Caribbean Sea and the Pacific Ocean, international courts and tribunals – including the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and an arbitral tribunal constituted under Annex VII of the 1982 Convention – have addressed the unique and critical issues arising in such delimitations.
   The 2012 judgment by ITLOS in Bangladesh/Myanmar and the 2014 award by the Annex VII tribunal in Bangladesh v India explained that it was unnecessary to wait for CLCS recommendations before delimiting the continental shelf beyond 200 miles in the Bay of Bengal. A slightly different approach was taken by the ICJ in the 2012 judgment in Nicaragua v Colombia, which declined to delimit any maritime spaces beyond 200 miles from Nicaragua’s coast.

   1. Maritime dispute in the Caribbean Sea
      The ICJ rendered a judgment in November 2012 in a maritime dispute between Colombia and Nicaragua over the sovereignty of a number of islands in the western Caribbean. In doing so, the Court unanimously fixed the course of the single maritime boundary between the two countries largely based on a simplified weighted line favouring Nicaragua.
   2. Maritime boundary between Peru and Chile
      In 2008, Peru filed an application at the ICJ claiming that its southern maritime boundary with Chile had not been formally delimited and asking the Court to undertake the task of delimitation using the equidistance method. In response, Chile took the position that the maritime boundary between the two states had been established in 1952.The Court issued its judgment on 27 January 2014, finding that an all-purpose maritime boundary existed between the two states along a horizontal parallel starting at Boundary Marker No. 1 and extending to 80 nautical miles.
   3. Maritime delimitation in the Black Sea
      In February 2009 the ICJ delivered its judgment in another major case: Maritime Delimitation in the Black Sea (Romania v Ukraine), an action instituted by Romania against Ukraine in 2004, regarding the delimitation of the continental shelf and the exclusive economic zones of Romania and Ukraine in the Black Sea. While the judgment draws an equitable line between both parties, Romania got a larger part of the disputed area. However, Ukraine has claimed that almost all of the oil and gas reserves are concentrated in the part of the continental shelf going to Ukraine; its president is reported to have regarded the ruling as ‘just and final’.
   4. Barents Sea
      In June 2011 the Russian Federation and Norway reached a deal to divide up their share of the Barents Sea into two equal areas. The deal is the result of decades of negotiations between the two countries. It is expected to allow companies to explore for oil and gas in the 68,000-square-mile area.

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This article is written by our Principal Associate, Chakaravarthi