Oceanic Law | Center for Community Law

The Assembly of the International Seabed Authority

Centre for Community Law — Wed, 04 Dec 2024 15:55:09 +0000

The Assembly of the International Seabed Authority
Center for Community Law

The Assembly’s duties are broadly categorized into policy-making and administrative functions:
Policy Formation
The Assembly establishes general policies in accordance with UNCLOS and the 1994 Agreement, ensuring the regulation of seabed activities aligns with international law.
Administrative Oversight
Specific responsibilities include:
Elections: Selecting members of the Council, other key bodies, and the Secretary-General.
Budget Approval: Sanctioning ISA’s two-year budget and determining member contributions.
Regulatory Frameworks: Approving rules and regulations governing prospecting, exploration, and exploitation of seabed resources.
Report Analysis: Reviewing annual reports from the Secretary-General and other relevant bodies.
Future Mandates
As deep-sea mineral exploitation progresses, the Assembly will play a crucial role in ensuring equitable sharing of financial benefits derived from seabed activities. Additionally, it will oversee compensation mechanisms for developing countries affected by diminished export earnings due to seabed production.
This broad spectrum of responsibilities highlights the Assembly’s essential function in shaping and monitoring the sustainable use of seabed resources

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One of the Finest in our Region: Judge Tafsir Malick Ndiaye (Senegal) Goes Home

Centre for Community Law — Fri, 08 Mar 2024 21:48:07 +0000

One of the Finest in our Region: Judge Tafsir Malick Ndiaye (Senegal) Goes Home
Center for Community Law

Today saw the painful announcement of the death of Judge Tafsir Malick Ndiaye. Judge Tafsir Malick Ndiaye was a Senegalese national who served on the Bench of the International Tribunal for the Law of the Sea (ITLOS) from its inauguration in 1996 until 2020. For the 24 years that his lordship served on the Bench, he contributed immensely to the work of the Tribunal and indeed the nurturing of the jurisprudence of the law of the sea.
Judge Ndiaye was a Judge that was loyal to his learning and conviction. He was never a Judge that was willing to yield to the strength of the majority against his conviction. This is reflected in the cases in which he participated as a judge. What you find in arguably a majority of the cases is that Ndiaye was not a Judge to be easily swept by the flood of the majority. Where he disagreed, depending on the degree of his disagreement, he expressed his view in dissenting opinions (the M/V SAIGA (No.2), the M/V Virginia G, THE Enrica Lexie Incident, etc); separate opinions (concerning Land Reclamation by Singapore in and Around the Straits of Johor, the JUNO Trader, Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, the M/V Louisa, The M/V Norstar, etc; or declarations (the Camouco, the Monte Confurco, etc).
He was thus a Judge that used the available tools to express his views and convictions, thus demonstrating that he either disagreed with the entire majority decision or an aspect of it. These could not but enrich the jurisprudence of the Tribunal and provide a more robust perspective of the issue at hand.
There is no doubt that, given his the knowledge and experience, Judge Ndiaye is a reference point in matters relating to the law of the sea in our Community (ECOWAS). He will be truly missed!
Born on 7 February 1953, Judge Ndiaye received his Doctor of Law from the University of Paris. He was a lecturer at the University of Paris and at the University of Dakar as well as a visiting professor in several Universities. In addition, Judge Ndiaye acted as counsel and co-agent for the Government of Senegal in a number of international cases. Judge Ndiaye was a member of the Ethics Board of the International Association of Athletics Federations (IAAF) and the Panel of Eminent Persons of the African Union. He also authored many books, monographs, articles and papers in various fields of public international law, in particular the law of the sea, international environmental law, and international organizations and the law of integration.

Center for Community & Oceanic Law, March 8, 2024

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How Nigeria Added Territory Without War, Litigation Or Purchase: A Rejoinder

Centre for Community Law — Tue, 02 Jan 2024 23:48:37 +0000

How Nigeria Added Territory Without War, Litigation Or Purchase: A Rejoinder
Center for Community Law

Introduction

My attention has been drawn to an article credited to Garba Shehu, who was the Senior Special Assistant, Media and Publicity to President Muhammadu Buhari.
In the article Garba Shehu made a fundamental assumption or error that I believe needs to be corrected at no better time than now that Nigerians are becoming more conscious of the potential economic benefits of the maritime entitlement of the country. The recent creation of the Federal Ministry of Marine and Blue Economy and the approval of an extended Continental Shelf (CS) of 20 nautical miles (nm) for Nigeria must be credited for the increased awareness.
Garba Shehu’s article was widely circulated by Garba Shehu and published on online platforms, including the Punch of 29 December, 2023, Prime Business Africa of 29 December, 2023, the News Chronicle of 1 January, 2024. In Mr Shehu’s determination for the article to be widely read, it was again published by the Voice of Nigeria on 2 January, 2024. It is to this one that my attention has been drawn.
False Assumption
In the article, and as its titled suggests, Garba Shehu claimed that “Nigeria gained additional territory without war or conflict, litigation, or purchase, as has never happened before in her lifetime”. If the motive of Garba Shehu was to give credit to Buhari (though history shows that at least three former Presidents deserve to take credit for it), I should suppose he is at liberty to have his say. However, Garba Shehu needs to know that he erred badly on this one.
I recall one of my LLM classes on the law of the sea in 2018, where a similar statement ascribed to Garba Shehu was raised during a discussion on the nature of rights States acquire over the CS. I am sad to recall the time and efforts it took to disabuse the minds of the students of the misleading claim made by Mr. Shahu. I understand that this is not an area he may be vast in, but I can only hope that, going forward, Mr. Garba would be careful enough to check with experts in a field he is not vast in to avoid a situation where he would repeat the same mistake.
It is very alarming to see that Mr. Garba was confident enough to show that Buhari had been misled to make the same error in a speech that might well have been written for him by Mr. Garba Shehu. According to him, President Buhari had said: “I have always had a special interest in this project right from the first day I heard of it because this type of project where Nigeria will gain additional territory without conflict has never happened before in her lifetime. It is pleasing to know that most wars that have taken place in the world since time immemorial including present times, have always been territorial and Nigeria has this one and only chance to gain territory without war, litigation, or purchase”.
I am sorry to disappoint both Mr Shehu and the former President Buhari (respectfully) by assuring them that that day has not come and shall never come that Nigeria’s territory would extend to 220 nm from the relevant baseline. No country is entitled to ascribe the tile of “territory to the continental shelf”. From when the CS was first recognised as a legal concept in a conventional text in the 1958 Convention on the Continental Shelf until the extant regime of the shelf created by the United Nations Convention on the Law of the Sea (UNCLOS), 1982, never has it been accepted that the CS is a territory capable of appropriation or acquisition by war, purchase, discovery or by any other means!
In my earlier intervention on the subject on 21 December, 2023, I made it clear that the only maritime zone a coastal State is entitled to treat as its territory is the territorial sea, which is only 12 nm from the relevant baseline (articles 2 and 3 of the UNCLOS). I would like to recommend both my earlier intervention and the UNCLOS to Mr Garba Shehu.
The Legal Status of the Continental Shelf
Factually speaking, the continental shelf, as understood by geographers and hydrographers is a species of platform physically extending from the territory of coastal States.The scientific concept of the CS is based on the realisation that the bottom of the sea is marked by a sort of great step almost always abrupt, which divides it into two quite distinct regions. The region extending from this step to the coast-line is called the ‘continental shelf’, while the other, much vaster, which extends beyond the continental shelf, is the abysmal region.The latter part is the part now designated as the Area for the benefit of all mankind as the common heritage of mankind (Articles 136 and 140 of the UNCLOS); and precluded from the jurisdiction of any State (articles 1 and 137 of the UNCLOS).
From a scientific viewpoint, therefore, the CS is only a physical fact that is associated with the territory of a coastal State by reason of the geographical configuration of the State’s maritime area, particularly the seabed, as it proceeds towards the deep seabed. This is completely different from the legal concept of the CS, though it bore a definition that was closely related to the scientific understanding by linking it more closely with the geographical configuration of a coastal State when it was first defined in article 1 of the 1958 Continental Shelf Convention.This is not the place to discuss the problems the 1958 definition created, which resulted in the intervention of the International Court of Justice (ICJ) with the concept of natural prolongation in the 1969 North Sea Continental Shelf cases.
Following the extensive discussion of the concept during the negotiation stage of the UNCLOS and the development of customary international law (CIL) in the field, the 1958 definition was partly jettisoned for the extant definition that largely frees itself from geographical configuration of the coastal planes of the coastal State (article 76(1) of the UNCLOS). Unlike the 1958 Convention, the UNCLOS gives 200 nm continental shelf entitlement to each coastal State. The result of this is that, irrespective of the geographical deficiencies or extensiveness of the CS of a coastal State, all States are entitled to a 200nm distance of CS in the first instance.
The UNCLOS however recognises the need to compensate coastal States whose CS entitlement may become shortened should geography be completely jettisoned (article 76(4)). As a result, it recognises, based on the geography of the continental margin of a coastal State, an extended CS, the physical fact of which must be ascertained and confirmed by the Commission on the Limits of the Continental Shelf (CLCS). This, as pointed out in my earlier intervention on the subject, is the reason Nigeria had to go through the CLCS for approval of its entitlement to an extended CS.
The history of the CS shows that one of the controversies that the legal concept of the CS faced was the legal status to be ascribed to it in relation to the sovereignty of coastal States; principally, whether the concept of territory should be ascribed to it and thus reserved exclusively to the use of the coastal State and capable of appropriation The other side of this question was whether all States have equal right and interest in its use. In other words, whether it was capable of appropriation (res nullius) or subject to the common ownership of all States (re communis).
The Rights of a Coastal States over its Continental Shelf vis a vis other States
As confirmed in the UNCLOS, none of these arguments was favoured. Rather, the Convention completely removed the notion of a territory capable of appropriation from the legal conception of the CS and then found a middle ground between limited exclusive use of the zone in favour of coastal States and limited communality of the zone in favour of all States.
This is where article 77 of the UNCLOS comes in to give exclusive rights over the resources of the zone, (only) to coastal States with an unmistakeable exclusion of sovereignty (through acquisition) by article 77(3), which provides that “the rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation”. The only other exclusive right granted coastal states is in article 80, the right to install artificial islands. This obviously questions the assumption of Shehu that a nation may have to go to war to have access to the CS.
To further ring-fence the zone from the sovereignty of any State, article 78 of UNCLOS (compared to its article 2(2)) also confirms the limited rights ascribed to coastal States over the zone. As a further confirmation of the preclusion of sovereignty, as against the holistic rights ascribed to the territorial sea of coastal States, article 78 preserves the rights of all other States (coastal and landlocked) to the use of the superjacent waters over the CS for navigation purposes (and even for the purpose of exploitation and exploration of the resources of the waters in the case of an extended CS that is not coexistent with the Exclusive Economic Zone of the coastal State or of any other State); article 78 also reserves the airspace over the shelf for the use of all States.
For balance, the purposes for which other States are permitted to use the CS of coastal States are clearly spelt out in article 79 of the UNCLOS.
Nigeria has no Territorial Entitlement over her Continental Shelf
Thus, contrary to what Garba Shehu assumes, beyond the territorial sea, neither Nigeria nor any other coastal State has the faculty to claim, as its territory, any zone of the sea that appertains to it by reason of being a coastal State. Undoubtedly, the CS is not capable of appropriation as a territory. What Nigeria has acquired is the right to exploit and explore the resources of the additional 20nm (extended continental shelf) and to create an artificial Island, should it desire to do that. Those are the only rights Nigeria can enjoy to the exclusion of all other States in the zone. Above all, Nigeria still has to make payments to the International Seabed Authority for the resources it takes out of the zone (article 82 of the UNCLOS), unless exempted by article 82(3).
It is even incongruous to reason and antithetical to the weight of sovereignty for a sovereign State to be under obligation to make payments to another entity for use of the sovereign State’s territory or not to have exclusive use of the territory.
Amos O Enabulele is a professor of public international law and director general of the Centre for Community and Oceanic Law
@Centre for Community & Oceanic Law, January, 2024

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What the Extended Continental Shelf Means for Nigeria

Centre for Community Law — Thu, 21 Dec 2023 12:27:17 +0000

What the Extended Continental Shelf Means for Nigeria
Center for Community Law

Amos O Enabulele

The Goal
The news that Nigeria’s application for an extended Continental Shelf (CS) has been granted to the breadth of 20 Nautical Miles (nm) by the Commission on the Limit of the Continental Shelf (CLCS), was bound to provoke the excitement it has provoked amongst experts on the law of the sea. Beyond the excitement, the real question now should be what Nigeria stands to benefit from the additional 20nm. This requires some thoughts on the preparedness of Nigeria to benefit from its overall maritime entitlements.
The Zones
Under the United Nations Convention on the Law of the Sea (UNCLOS), being a coastal State, Nigeria is entitled to exercise its national jurisdiction (article 1(1) of the UNCLOS) over four zones: the Territorial Sea, the Contiguous Zone, the CS and the Exclusive Economic Zone (EEZ). By the clear provision of the UNCLOS, reflecting customary international law (CIL), Nigeria is entitled to exercise sovereignty over the seabed, subsoil, the superjacent waters and the air column over 12 nautical miles from the relevant baseline along its coast – the Territorial Sea (articles 2 and 3 of the UNCLOS). This is the only zone that appertains to Nigeria by reason of her territorial sovereignty. The other three zones are derived from the rights accorded coastal States by the law of the sea for the specific purposes for which the zones were created and granted (article 77(3)).
Categories of Rights
Accordingly, while Nigeria can exercise its absolute rights within its territorial sea, subject to the right of innocent passage (article 17 of the UNCLOS), it can only exercise the limited sovereign rights allowed it by the law of the sea in the other zones. The contiguous zone (article 33 of the UNCLOS), which is 24nm from the same relevant baseline is for prevention and punishment of infringement of customs, fiscal, immigration or sanitary laws and regulations within Nigeria’s territory or territorial sea. Nigeria is entitled to exercises its sovereign right over the EEZ, covering 200 nm of the superjacent waters from the same relevant baseline (articles 55-57). It is also entitled to exercise sovereign right over the CS (article 76), generally covering 200 nm of the seabed and subsoil from the same relevant baseline. Both the EEZ and CS are mainly economic in nature and Nigeria is only permitted to exercise exclusive rights over the resources of the zones with due regards to the protection of the marine environment from pollution and to the rights of all other States to use the zones for other purposes. This invariably means that Nigeria can exercise enforcement powers, but only those that are required to enjoy its rights and fulfil its duties in the zone.
As the focus of this piece is on the Nigeria CS, we shall now tailor the discussion along that line.
The Continental Shelf
The term “continental shelf” bears different definitions depending on whether it is being defined by a geologist or a lawyer. To the geologists, “the continental shelf” is that part of the continental margin which is between the shoreline and the shelf break or, where there is no noticeable slope, between the shoreline and the point where the depth of the superjacent water is approximately between 100 and 200 metres. To a lawyer, it is as defined in article 76 of the UNCLOS, that:
the continental shelf of a coastal State comprises the submerged prolongation of the land territory of the coastal State – the seabed and subsoil of the submarine areas that extend beyond its territorial sea to the outer edge of the continental margin, or to a distance of 200 nautical miles where the outer edge of the continental margin does not extend up to that distance….
There is what I would call, the default CS (200nm from the relevant baseline) which every coastal state is entitled to, as distinct from the extended CS, which some coastal States are entitled to by reason of the geographical configuration of the coastal platforms. By reason of paragraphs 4 to 9 of article 76, coastal States with naturally prolonged continental margin could establish an extended CS up to 350nm. However, unlike the delimitation of other maritime boundaries, the extended CS is not a unilateral act of State sovereignty – Fisheries case, (United Kingdom v. Norway), ICJ Rep 1951, 116, 132 – in that a State whose natural prolongation qualifies it for the extension, can do so only on the approval; of the CLSC (article 76(8)).
This explains why Nigeria and all other States that have extended CS had to apply to the CLCS for verification and approval of their entitlement. Whatever additional limits the CLSC determines a State is due is then added to the default 200 nm entitlement of each coastal State. This is capped at an additional 150nm for extended CS, for an overall 350nm of a combination of the default and the extended. By reason of the additional 20nm, therefore, Nigeria now has an overall CS 220nm in that area of the Western part of the Gulf of Guinea.
The Commission on the Limit of the Continental Shelf
Detailed provisions on the CLCS are contained in Annex II to the UNCLOS. Article 3 of the Annex stipulates the functions of the Commission to be:
(a) to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles, and to make recommendations in accordance with article 76 and the Statement of Understanding adopted on 29 August 1980 by the Third United Nations Conference on the Law of the Sea; and
(b) to provide scientific and technical advice, if requested by the coastal State concerned during the preparation of the data referred to in subparagraph (a).
The CLCS is the vehicle which implements the UNCLOS regime on the establishment of the outer limits of the CS beyond 200 nautical miles from the relevant baselines of a deserving coastal State.
The Long Road to Nigeria’s Extended Continental Shelf
In accordance with article 76, paragraph 8, of the UNCLOS, Nigeria submitted its application for an extended CS to the CLCS on 7 May 2009. It was first presented to the twenty-fourth session of the Commission on 28 August, 2009, by a delegation led by the then Attorney General of the Federation and Minister of Justice, Michael Aondoakaa. Other members of this historic delegation were Aliyu Omar, Director, National Boundary Commission, U. Joy Ogwu, Permanent Representative of Nigeria to the United Nations, and a number of scientific, legal and technical advisers.
One remarkable point made by Mr. Aondoakaa at the point of presentation was that the submission was made without prejudice to maritime boundary delimitation with neighbouring States with opposite or adjacent coasts. This was a clear indication that the Governments of neighbouring States will not pose any obstacles to the implementation of article 76 on the part of Nigeria. He hinged this assurance on a meeting held under the auspices of the Economic Community of West African States (ECOWAS) in Accra, Ghana, from 24 to 26 February 2009. That meeting had been attended by representatives from Benin, Côte d’Ivoire, Ghana, Nigeria and Togo, who reached the common understanding that “[i]ssues of the limit of adjacent/opposite boundaries shall continue to be discussed in a spirit of cooperation to arrive at a definite delimitation even after the presentation of the preliminary information/submission. Member States would, therefore, write ‘no objection’ note to the submission of their neighbours”.
The CLCS established a subcommittee to look into the application at its 39^th session in 2015, which considered the submission in its 39^th and 40^th sessions and raised some questions which led Nigeria to conduct a new geophysical survey in the Gulf of Guinea. On 18 September, 2016, Nigeria submitted an amendment to its earlier submission.
The approval of extended continental shelf entitlement for Nigeria followed the consideration of the recommendations of the Commission on the application of Nigeria on 11 August, 2023, sequel to the presentation of the of 8 August, 2023, by the Permanent Representative of Nigeria to the United Nations and head of delegation, Tijjani Muhammad Bande. He was assisted by a technical adviser and member of the High-Powered Presidential Committee on the Continental Shelf, Lawrence Awosika; and a technical consultant with the Australian National Centre for Ocean Resources and Security at the University of Wollongong, Philip Symonds. The Commission deliberated on the recommendations and approved it with amendments on 11 August 2023.
ECOWAS Community’s Share of Extended CS
Nigeria is not the only ECOWAS State that has claimed an extended CS. Ghana submitted an application on 8 April, 2009; Côte d’Ivoire submitted its application on May 8, 2009; the Republic of Cabo Verde, the Republic of The Gambia, the Republic of Guinea, the Republic of Guinea-Bissau, the Islamic Republic of Mauritania, the Republic of Senegal and the Republic of Sierra Leone, submitted a joint application on 25 September 2014;  the Republic of Liberia submitted an application on 23 October 2018; the Republic of Benin and the Togolese Republic also submitted a joint application on 21 September 2018.
Interestingly, that of Ghana was approved as far back as 2014, and that of Côte d’Ivoire was approved on 2020. Earlier in the year, being concerned over the delay of the Nigerian application, the Centre for Community and Oceanic Law contacted the Secretariat of CLCS on 31 May, 2023, to ascertain the state of Nigeria’s application. This enquiry was responded to by the CLSC’s Principal Legal Officer, who provided the Centre some helpful guidance on the matter on 14 June, 2023.
What is in it for Nigeria
The CS is a warehouse of resources, including huge oil and gas deposit. By article 77 of UNCLOS, Nigeria exercises over the continental shelf, sovereign rights for the purpose of exploring it and exploiting its natural resources. These 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. By article 81, Nigeria has the exclusive right to authorize and regulate drilling on its CS as well as to install artificial islands and engage in other economic activities (article 80, read together with article 60)
As Nigeria has now acquired sovereign rights over an additional 20nm of CS, the CS area over which it can now perform or authorise these activities has been extended, from 200nm to 220 nm, as a result. The exclusivity of the rights is further emphasised by article 77(4), which makes the sovereign rights to explore and exploit exclusive to Nigeria in the sense that if Nigeria does not explore Nigeria’s CS or exploit its natural resources, no other State may undertake these activities without the express consent of Nigeria.
It is however, not all about rights, there are also obligations which Nigeria must be minded to fulfil, not least of which is the overarching duty to protect the marine environment. Nigeria is also under obligation to make annual payments and contributions with respect to the exploitation of the CS beyond its original 200 nautical miles, except if it is shown that Nigeria is a net importer of a mineral resource produced from its CS in which case it will be exempt from making such payments or contributions in respect of that mineral resource.
Minimising the impact of extended CS on the Area
It is essential to remark that the ocean floor assumes differing nomenclatures and bestows different category of rights as it proceeds seawards. What is referred to as the seabed and subsoil of the territorial sea over which a coastal State has sovereignty is what progresses into the CS over which a coastal State exercises only limited rights described as sovereign rights; and it is the same that progresses into the deep ocean floor of abysmal region known as the Area. The area is reserved for all mankind as the common heritage of mankind (Articles 136 and 140 of the UNCLOS). It is defined in article 1 as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” because it is not subject to the sovereignty or the control of any State (article 137 of the UNCLOS). Its resources belong to all mankind and to be shared to all States – coastal or landlocked.
There is a clear relationship between the extended CS and the Area in the sense that were the institution of extended CS not created, all the ocean floor beyond 200nm would naturally fall within the Area. It appears that it is in recognition of the fact that extended CS removes from the Area that coastal States with extended CS are obligated to make the contributions mentioned previously. This is more so as the contributions are required to be made through the Authority to distribute to State Parties to the UNCLOS 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. The Authority is the body saddled with the responsibility to govern the Area and its resources.
The End
In the final analysis, it is difficult to be very optimistic that Nigeria would take full advantage of the extended continental shelf as quickly as it should. This is because the manner Nigeria has so far managed its oil and gas resources hardly inspire any confidence. It is however possible to be hopeful that the creation of the Federal Ministry of Marine and Blue Economy would not just be only in words but also in action to be seen in measurable achievements. It is expected that would urgently complete the process and commence licencing and exploration activities in the zone. I cannot omit to stress the benefit of cooperation and collaboration between opposite and adjacent States in this regard. The ECOWAS platform is a ready platform to be used to galvanise efforts towards a better utilization of the blue resources of the region. It is yet to be seen how ECOWAS has taken advantage of the fact that twelve – Benin, Cabo Verde, Côte d’Ivoire, The Gambia, Ghana, Guinea-Bissau, Guinea-Conakry, Liberia, Nigeria, Sierra Leone, Senegal and Togo – out of its 15 member States are coastal States and all twelve coastal States have submitted applications to the CLCS for a share of an extended CS. The ECOWAS Accra, Ghana meeting of 24 to 26 February, 2009, that paved the way for a no-objection extended continental shelf application by ECOWAS States has shown that such cooperation is needed and possible. These States should pull resources together to develop a strong blue economy and safe ocean for the community.
Amos O Enabulele is a Professor of Public International Law and DG, Centre for Community & Oceanic Law

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