Continental Shelf Rights vis-à-vis the International Law

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This post has been written by Khushi Agarwal, a first-year B.A.,LLB,, student from ILS Law College, Pune.

Introduction

Geologically, the expression ‘Continental Shelf’ refers to the ledges projecting from the continental landmass into the seas, which are covered with a relatively shallow layer of water, eventually falling into the ocean depths. At the international level, these areas hold vital importance due to the fact that they are rich in oil and gas resources and quite often are host to extensive fishing grounds. Thus, the need for the development of a law regulating their usage arose because in absence of one, there was a high risk of different countries occupying large portions of the sea-bed and incorporating them into their territory for commercial exploitation. Accordingly, over the years, attempts were made by the International Community in the form of various treaties and conventions to confirm as well as delimit each coastal state’s right to explore and exploit the natural resources of continental shelf. This article is an attempt to analyze these attempts and further, highlight India’s position with respect to these frameworks.

Gulf of Paria Treaty of 1942 and Truman Proclamation of 1945

Until the first quarter of the twentieth century, the legal concept of continental shelf was not of much importance since the submarine areas remained widely unexplored due to the lack of marine technology and man’s lack of understanding of the land under the oceans. As progress was made in this regard, the exploration of continental shelves began and gradually enhanced to a great extent during the Second World War. Subsequently, the United Kingdom and United States, although acting independently, initiated a new legal regime in this regard.

The Gulf of Paria Treaty was initiated by the United Kingdom with Venezuela. In 1936, the Foreign Office of the United Kingdom instructed its embassy in Venezuela to arrive at an agreement with the host government regarding the delimitation of the sea-bed and sub-soil of the Gulf of Paria, which is surrounded by the coast of Venezuela and the island of Trinidad. Under this treaty, both the parties agreed to recognize each other’s rights over the specified parts of the submarine area of the Gulf based on the occupation-theory, i.e., the limits of territorial waters adjacent to the coast could be acquired by occupation, provided that such occupation did not impinge upon the status of waters above the submerged land.[1]

On September 28, 1945, President Harry S. Truman signed a Proclamation laying down the policy of United States with respect to the natural resources of the Sub- soil and Sea-bed of the continental shelf, based on the recommendation of the Secretary of the Interior of United States to the then President Roosevelt in 1943. As per a subsequent U.S. State Department press release, the submarine land contagious to the U.S. coasts, covered by no more than 100 fathoms of water, would be subject to U.S. jurisdiction and control. Further, in cases where the continental shelf extends to the shores of another state or is shared with an adjoining state, the boundary shall be determined by the United States and the state concerned according to equitable principles without affecting the freedom of navigation in the high seas. [2]

However, neither of the two treaties had used the term continental shelf nor employed any criteria for delimiting frontiers of the annexed areas on the basis of which such areas could be claimed by the parties.

The Geneva Convention on Continental Shelf, 1958

The Geneva Convention was an effort by the international community to define and delimit the boundaries of a continental shelf and to establish a balance between the rights of the coastal states over their continental shelf and those of other states making use of the high seas for the purpose of navigation, fishing, etc. in order to avoid or minimize the possibility of conflicts between them.

Article 1 of the Convention defined Continental Shelf as:-

(a) to 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;

(b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.[3]

However, this definition provided two alternative criteria for defining the area of continental shelf, namely, depth of the sea criteria and exploration criteria, and the latter, if accepted could pave way for major conflicts between the countries and thereby disrupting the balance that Article 5 of the Convention had aimed to establish.

United Nations Convention on the Law of Sea, 1982

The UNCLOS, 1982, enforced in 1994 and based largely on the decision of the International Court of Justice in the North Sea Continental Shelf Cases (1969),[4] lays down various rights of the coastal states with respect to the continental shelf areas in Part VI.

The Convention settled the controversy regarding the definition of Continental Shelf and clearly stated under Article 76 that the continental shelf of a coastal State will comprise of the seabed and subsoil of the submarine areas up to a uniform distance of 200 nautical miles from the baselines of its land territory. Further, Paragraph 4(a) of Article 76 laid down the method of establishing the outer edge of the established continental margin and the formula for fixing the precise limits of the Continental Shelf of a coastal state was mentioned in Paragraph 5 of Article 76.

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Article 77 provides that the coastal state has the ‘sovereign right’ to explore and exploit the natural resources of its Continental Shelf, along with tunneling[5] and drilling rights[6], and these rights do not depend on occupation, or any express proclamation.[7] Such rights are exclusive in the sense that no other state may undertake such activities without the express consent of the coastal state.[8]

Article 82 further provides that those coastal states which exploit the non-living resources of the continental shelf beyond 200 nautical miles are required to make annual payments or contributions in kind to the International Sea-bed Authority and the rate of such payments and contributions will be guided by Article 83.

Apart from the rights of the coastal states, the Convention makes some provisions for the rights of the other states as well. Firstly, Article 78 maintains that the above rights of the coastal states over the continental shelf do not affect the legal status of the superjacent waters or of the air space above them. Secondly, the exercise of the right of the coastal states over the continental shelf must not infringe or result in any unjustifiable interference with navigation rights and freedom of other States.

Lastly, Article 83 provides that the delimitation of Continental Shelf between states with opposite or adjoining coasts will be made by an agreement in accordance with the Article 38 of the Statute of the International Court of Justice, to achieve an equitable solution.

India’s position on the Continental Shelf

Section 6(1) of the Maritime Zones Act, 1976 defines India’s position with respect to continental shelf stating that the continental shelf of India comprises the sea-bed and subsoil of the submarine areas to a distance of 200 nautical miles from the baseline of the mainland territory. Further, Section 6(3) lays down the rights of the Union of India with respect to such area-

  1. The sovereign right to explore, exploit, conserve and manage all resources;
  2. The exclusive right and jurisdiction to construct, maintain or operate the artificial Islands, off-shore terminals, installations and other structures and devices necessary for the continental shelf or for shipping purposes;
  3. The exclusive jurisdiction to authorize, regulate and control scientific research, and
  4. The exclusive jurisdiction to preserve and protect the marine environment and to prevent and control marine pollution.

It is further provided that no person (including a Foreign Government) can carry out any construction, exploration, search, drilling or research with the continental shelf or construct, maintain or operate any artificial Islands, offshore terminals, installations or other structure or device for any purpose without procuring a license or a letter of authority from the Central Government. Further, the government can declare the continental shelf and its magical waters for a certain area and take action to regulate it.

Conclusion

The geographical concept of the continental shelf is an old one but the legal regime regulating it at the international level originated quite recently. Starting from the Gulf of Paria Treaty in 1942, followed by the Truman Proclamation of 1945 and finally, the Geneva Convention of 1958 were major steps in this regard; however, each of them had some inherent defects, particularly in defining the continental shelf. At present, the U.N. Convention on the Law of Sea, 1982 regulates the areas of Continental Shelf, dealing with all the aspects of their delimitation and the various rights of the coastal states as well of the other states with respect to them. As discussed earlier, the Indian position in this regard is consistent with the provisions of the UNCLOS, 1982.
To sum up, it can be stated that the adoption of the continental shelf concept has been rapid due to the abundance of natural resources in these areas as well as from the point of view of security of the coastal states and given their vital importance, it can be safely said that further developments will be sooner than later.

[1] S.P. Gupta, International Law and Human Rights 158 (1st edn., Allahabad Law Agency, Faridabad, 2009).

[2] S.K. Kapoor, International Law & Human Rights 265 (19th edn., Central Law Agency, Allahabad, 2014).

[3] J.A.C. Guterridge, The 1958 Geneva Convention on the Continental Shelf, 35 Brit. Y. B. Int’l L. 102 (1959).

[4] Germany v. Denmark and the Netherlands [1969] ICJ 1

[5] Art. 85

[6] Art. 81

[7] Art. 77, Para 3.

[8] Art. 77, Para 2.

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