- This Note has been prepared with the assistance of Douglas Guilfoyle, doctoral student, Faculty of Law, University of Cambridge. I am grateful also to Maurice Sheridan of Matrix Chambers for his comments. This Introductory Note has been prepared for the purposes of discussion only and is not to be treated as a legal opinion or legal advice. It touches upon legal issues arising under UNCLOS and of general international law that have not yet been the subject of authoritative determination. Any views expressed are those of the author alone and are not to be ascribed to the Commonwealth Secretariat or to any State or States.
In October 2004 Commonwealth Law Ministers of Small Jurisdictions issued a Communiqué concerning the implementation of Article 76 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Ministers recommended that: "The Commonwealth Secretariat should prepare a summary of the rights and obligations in respect of an extended continental shelf under UNCLOS." The Special Advisory Services Division (SASD) of the Commonwealth Secretariat subsequently decided to expand the focus of this report to include a legal opinion on the situation post-2009 for countries that failed to meet the deadline imposed under UNCLOS for submission to the Commission on the Limits of the Continental Shelf (Commission) or (CLCS) established pursuant to Annex II of UNCLOS.
In accordance with these decisions I have been asked to prepare:
(a) a short report (no more than 5 pages), on the rights and obligations in respect of the extended continental shelf under UNCLOS;
(b) a short discussion paper on the likely post-2009 situation for those countries who will have failed to meet the UN deadline for the submission of extended continental shelf claims to the CLCS.
This Introductory Note addresses both issues and is divided into two parts. Part I reports on the rights and obligations of states in respect of the extended continental shelf under UNCLOS; Part II discusses the legal situation for those states that might fail to meet the UNCLOS deadline for submission of information on the limits of the continental shelf beyond 200 nautical miles from baselines.
UNCLOS was adopted on 10 December 1982 and entered into force on 16 November The Rights and Obligations of States in respect of the Extended Continental Shelf under 1994. One hundred and forty seven (147) states and the European Community are parties. Part VI of UNCLOS (Articles 76 to 85) addresses the continental shelf.
Article 76(1) provides:
"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 Page 440 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."
Under Article 76(1) there is therefore a distinction between the legal definition of the continental shelf and its geographical definition. Article 76(2) and 76(4) to (6) establish the substantive rules governing the geographical location of the outer limits of the extended continental shelf. Articles 76(7) to (9) set out the steps that are to be taken by a coastal state in delineating and establishing an extended continental shelf. In sum, the rules provide that areas of the sea-bed that lie beyond the continental margin are included in the continental shelf so long as they are within 200 miles of the coast. Where the continental margin (which is defined in Article 76(3) as the shelf, slope and rise and excluding the deep oceanic floor with its ocean ridges) extends beyond 200 miles, specific rules provide for the calculation for the purposes of UNCLOS of the outer limit of the continental shelf.
Where the continental shelf extends beyond 200 nautical miles from baselines, a coastal state may delineate and establish the outer limits of its continental shelf up to the outer seaward limit permitted by Article 76(4) to (6) of UNCLOS, which is either
* up to 350 miles from the baselines, or
* within 100 miles of the 2,500 metre isobath.
Within those outer limits, Article 76(4)(a) provides that the outer edge of the delimited shelf must be a line that is either
* where "the thickness of sedimentary rocks [forming the sea bed] is at least 1 per cent of the shortest distance from such point to the foot of the continental slope"; or
* of "fixed points not more than 60 nautical miles from the foot of the continental slope."
For the purposes of this paper the area of continental shelf beyond the 200 mile limit and up to the outer limit is referred to as "the extended continental shelf".
What are the rights and obligations of the coastal state in its extended continental shelf? The rights of the coastal state are addressed by Article 77 of UNCLOS. On its face this provision draws no distinction between the rights of a coastal state in the continental shelf up to 200 miles and the rights over an extended continental shelf that lies beyond 200 miles. Article 77(1) provides that
"The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources."
Article 77(4) defines the natural resources in question as "the mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species". It is clear therefore that the non-living resources include oil and gas.
As mentioned, in general the rights of a coastal in the extended continental shelf are the same as in the area up to 200 miles, although there are certain differences, not least because in the extended continental shelf certain obligations are imposed (see below).2 Rights in the extended continental shelf are exclusive: if the coastal state does not explore the extended continental shelf or exploit its natural resources no one else may do so without the express consent of the coastal state (Article 77(3)). Article 81 emphasises that
"The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes."
This applies to all parts of the continental shelf, including the area beyond 200 miles.
Within the extended continental shelf the coastal state also has the exclusive right to construct and to authorise and regulate the construction, operation and use of artificial islands and certain installations and structures (Article 80). The exclusive rights of the coastal state in the extended continental shelf are without prejudice to the rights of all states to lay submarine cables and pipelines on the extended continental shelf, subject to certain conditions defined by UNCLOS (Article 79). One material difference between the continental shelf and the extended continental shelf concerns the status of superajacent waters: in the former they will form part of the exclusive economic zone (if it has been established under Part V of UNCLOS) over which the coastal state exercises sovereign rights, including in respect of fisheries, whereas the waters lying above the extended continental shelf are part of the high seas and therefore subject to the regime of high seas freedoms, including fisheries.
As regards obligations within the extended continental shelf, it is clear the exercise of sovereign rights is not dependent upon occupation, whether effective or notional: see Article 77(3). Article 77(3) also makes it clear that "express proclamation" is not required for a coastal state to exercise rights over the continental shelf. This does not mean, however, that a coastal State is free from procedural requirements in relation to any extended continental shelf over which it may wish to exercise sovereign rights.
Article 76(7) requires a coastal state to delineate the outer limits of its continental shelf in accordance with certain principles:
"The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude."
The obligation to delineate in accordance with these principles applies to any...