DRAFT – NOT FOR CITATION
Delimitation of the continental shelf beyond 200M and prospects for
revenue sharing between states and the international community
by
David M. Ong
Nottingham Law School, Nottingham Trent University
Introduction
On the occasion of the 30th anniversary of the adoption of the 1982 UN Convention
on the Law of the Sea (UNCLOS), this paper will focus on the legal regime for the
continental shelf beyond 200M that the Convention established. Two major aspects
of this regime will be subjected to particular scrutiny, namely, the delimitation of the
continental shelf beyond 200M and prospects for the bilateral and multilateral
implementation of the revenue-sharing provisions for mineral resources exploited in
this part of the continental shelf. Within the delimitation aspects of this paper, a
further distinction that will be made for purpose of analysis is as follows:
Delimitation in this context will comprise first, the delineation of the final limits of
the CS beyond 200M demarcating the end of coastal state jurisdiction and by
extension, the beginning of the deep sea-bed ‘Area’, minerals exploitation of which is
to be administered by the ISA; and second, delimitation in the more traditional sense
of the term within international law, namely, maritime boundary delimitation
between adjacent and opposite coastal/island states. In the latter case, delimitation
takes place in overlapping sea-bed areas claimed by coastal states beyond 200M.
While Lathrop notes that such sea-bed delimitation between states ‘is a distinct and
wholly separate process’ from the delineation of the outer limits of the continental
shelf beyond 200M, he rightly cautions that ‘the issues involved are also closely
linked.’1
A further aspect of such delimitation between adjacent and/or opposite States
involves the need to cater for the possible presence of shared or transboundary
natural resources. Within this context, the first bilateral agreements (between
Mauritius and the Seychelles) on overlapping continental shelf entitlements beyond
200M, incorporating a joint development regime with prospectively shared revenues,
will be considered here. The 2012 Mauritius-Seychelles Joint Management treaty
provides for equal (50:50) revenue sharing from the exploitation of natural
resources in the overlapping continental shelf/sea-bed entitlement zone beyond
200M delineated by a separate but related 2012 Joint Sovereign Rights treaty.2 The
final substantive part of this paper also relates to revenue sharing with respect to the
Coalter Lathrop, ‘Continental Shelf Delimitation beyond 200 Nautical Miles: Approaches Taken by
Coastal States before the Commission on the Limits of the Continental Shelf’, in D A Colson and R W
Smith (eds) International Maritime Boundaries, Vol.VI (2011) 4139-4160, at 4140.
2 Full titles and sources: the Treaty concerning the Joint Exercise of Sovereign Rights Over the
Continental Shelf in the Mascarene Plateau Region (adopted & signed: entry into force: 18 June 2012;
registration #: 49782; registration date: 11 July 2012; link to UNTS) (see Law of the Sea Bulletin No.
79); and the Treaty concerning the Joint Management of the Continental Shelf in the Mascarene
Plateau Region (entry into force: 18 June 2012; registration #: 49783; registration date: 11 July 2012;
link to UNTS) (see Law of the Sea Bulletin No. 79)
1
1 requirement under article 82 of the Convention for payments and contributions from
the exploitation of the continental shelf beyond 200M for distribution by the
International Sea-bed Authority (ISA) to designated members of the international
community. Issues arising from the possible interpretation and future application of
article 82 have been considered inter alia by the ISA,3 as well as the International
Law Association (ILA)4 and will re-assessed here.
I. Delimitation of the continental shelf beyond 200M
A. Delineation of final limits of the continental shelf vis-à-vis the Area
Elaborating on the two different aspects of delimitation considered here, an initial
observation on the decision-making process for delineation of the continental shelf
beyond 200M is the notable absence of a role for the ISA in this process. This is
despite the fact that the expansion of a State’s continental shelf beyond 200M
necessarily impinges on the remaining sea-bed Area within the ISA’s remit. Instead,
coastal States are enjoined to define the final limits of their continental shelves
according to the criteria laid down under article 76 and then, following application to
the Commission on the Limits of the Continental Shelf (CLSC), delineate these limits
in a final and binding form. The role played by the CLCS in this exercise has been
scrutinized in the literature and will not be enlarged upon here, save to note that
there is a debate as to who has the ultimate say over the delineation of the final limits
of the continental shelf beyond 200M by the coastal State on the basis of the CLCS
recommendations – the State itself, the CLCS, or other members of the international
community, either individually, or as represented by the ISA, or through other means.
Wolfrum, for example, observes that the ISA has no role in the deliberations of the
CLCS and he is not alone among eminent commentators in finding this an
unconvincing proposition. 5 Francalanci notes that the absence of juridical
representatives on the Commission is exacerbated by the lack of provision for the ISA
to participate in the CLCS deliberations on the issue, ‘not even as an observer.’6
Moreover, there is neither a legal procedure nor standing for the ISA to challenge
either the CLCS recommendations or the final and binding limits of the continental
shelf beyond 200M established by a coastal State on the basis of these
recommendations.
Prows neatly encapsulates the legal difficulties faced by the international community
in this context when he observes that: ‘Property rules in ocean space are particularly
3 International Sea-bed Authority (ISA), Issues ASSOCIATED WITH THE IMPLEMENTATION OF
ARTICLE 82 OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, ISA
TECHNICAL STUDY: NO. 4 (2009)
4 International Law Association (ILA), Report of the 73rd Conference, Rio de Janeiro 17-21 August
2008, Committee on Legal Issues of the Outer Continental Shelf (CLIOCS), Report on Article 82 of the
1982 UN Convention on the Law of the Sea (UNCLOS) London: ILA (2008) 1044-1062, Working
Session Report, 1063-1073.
5 Rudiger Wolfrum, ‘The Role of International Dispute Settlement Institutions in the Delimitation of
the Outer Continental Shelf’, in Rainer Lagoni and Daniel Vignes (eds) Maritime Delimitation, Leiden:
Martinus Nijhoff (2006) 19-31, at 24.
6 Gian Piero Francalanci, ‘Technical Problems for the Commission on the Limits of the Continental
Shelf, in Davod Vidas and Willie Ostreng (eds), Order for the Oceans at the Turn of the Century, The
Hague: Kluwer Law International (1999) 123-132, at 132, citing S. Karagiannis, ‘Obervations sur la
Commission des limites du plateau continental’, Espaces et resources maritimes, No.8 (1994) at 182.
2 difficult to reconcile with an international law modelled only from unilateral acts and
inter se relationships.’7 As he goes on to note, this is the case even when there is ‘a
generally shared interest in the outer limits of coastal States’ jurisdictions because
beyond that the ocean commons necessarily begins where every State has an interest
in seeing that resources not be monopolized or degraded.’ 8 In attempting to
apprehend this shared interest of the international community, Wolfrum eschews the
clear implication of the ‘final and binding’ nature of the coastal State’s delineation of
the outermost limits of its continental shelf beyond 200M by suggesting that it
cannot be construed so as to preclude recourse to a judicial dispute settlement
procedure to possibly challenge its veracity.9 However, even if this type of legal
challenge is allowed, Wolfrum accepts that neither the CLCS, nor the ISA lacks the
standing to challenge any unilateral delineation by a State.10 While the St Pierre and
Miquelon (Canada v France) Arbitration tribunal considered that the ISA could
intervene in such matters,11 this view has been critiqued by Boyle on two fronts: 1)
lack of competence of the ISA to intervene in such delineation between the
continental shelf and the Area; and 2) lack of standing of the ISA to be a party to
either UNCLOS Part XV compulsory judicial procedures, or the compulsory
jurisdiction of the Sea-bed Disputes Chamber, because such a dispute would not
involve ‘the interpretation or application of Part XI’ (relating to the deep sea-bed
Area).12
On the role of the CLCS itself in relation to the final determination of the outer limits
of the continental shelf beyond 200M vis-à-vis the limits of the ‘Area’, there is
undoubtedly a feeling that persists among eminent commentators that the CLCS
responses to coastal state submissions are somehow more than merely
recommendatory in strictly legal terms. Oxman, for example, has observed that the
CLCS is receiving an increasing number of submissions from broad margin states
that ‘if approved’ will permit those states to establish the definitive limits of their
continental shelves beyond 200M.13 On the other hand, McDorman’s view of the
essentially facilitative role of CLCS as a watchdog to safeguard against exaggerated
continental shelf claims beyond 200M is probably the more appropriate appellation
for this body,14 although it would be safe to say that this watchdog’s bark is definitely
worse than its bite as it has no teeth(!) The 2006 report by the ILA Committee on the
Legal Issues of the Outer Continental Shelf (CLIOCS) on this issue concludes, inter
alia, that: ‘(t)he Commission is not competent to assess whether a coastal State has
established the outer limits of the continental shelf ‘on the basis of’ its
7 Peter Prows, ‘Tough Love: The Dramatic Birth and Looming Demise of UNCLOS Property Law (and
what is to be done about it)’, Texas International Law Journal (2006) 241-309, at 266.
8 Ibid.
9 Wolfrum (2006) op. cit., at 25.
10 Ibid., at 25.
11 95 International Law Reports 543 (1992)
12 Alan Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and
Jurisdiction’, International and Comparative Law Quarterly, Vol.46, Issue 1 (Jan., 1997)37-54, at 46.
13 Bernard Oxman, ‘The Territorial Temptation: A Siren Song at Sea’, American Journal of
International Law (AJIL), Centennial Essays, Vol.100, No.4 (Oct., 2006) 830-851, at 838.
14 Ted McDorman, ‘The Role of the Commission on the Limits of the Continental Shelf: A Technical
Body in a Political World’, IJMCL, Vol.17, No.3 (2002) at 301-324, at 308, text to fn.29, citing
Commentary – 1982 UNCLOS and 1994 Implementation Agreement, US Senate, Treaty Doc 103-39
(1994) at 57.
3 recommendations. Other States may indicate that they consider that the coastal State
has not acted on the basis of the recommendations of the Commission.’15
Recognition of the limited role played by the CLCS and the almost insignificant role
of the ISA in ensuring the compatibility of a coastal state delineation of the outer
limits of the continental shelf beyond 200M with the requirements of UNCLOS
Article 76 begs the question as to whether, when and how an opposite, adjacent or
third-party state can intervene when there is disagreement with the coastal state on
this matter. At one (extreme) end of the spectrum of possible interpretations of the
‘final and binding’ delineation exercise undertaken by the coastal State, Suarez goes
so far as to suggest that even the ‘(o)uter limits adopted on the basis of the
Commission’s recommendations do not become final and binding to third states and
the international community as neither of these groups is a party to the submission
process.’16 She relies on paragraph 10 of article 76 to argue that since none of the
provisions of this article can prejudice questions of continental shelf delimitation,
even the deposit of charts by coastal states apparently denoting the final limits of
their continental shelves beyond 200M may be conditional on their acceptance by
neighbouring states and therefore not amount to ‘a permanent description’ of these
limits.17 McDorman too questions how far these limits can bind states that do not
agree with these limits, even when they are objectively based on the CLCS
recommendations, noting that since individual states must evaluate whether a state’s
delineation of its final continental shelf limits beyond 200M is ‘on the basis of’ the
CLCS recommendations, the phrase ‘final and binding’ cannot mean this in respect of
all states, at least until each of their individual evaluations are positive, even if the
claiming state and the CLCS are in accord on the matter.18
However, the 2006 ILA report on this issue represents the other end of the spectrum
of authoritative legal opinion on this matter, holding that once the outer limits of the
continental shelf beyond 200M are established ‘on the basis’ of CLCS
recommendations, these limits are ‘final and binding’ on the submitting coastal state,
as well as other state parties to the Convention.19 More recently, within the context of
the International Tribunal on the Law of the Sea (ITLOS) Bangladesh/Myanmar
(2012) judgment,20 the Tribunal’s view on this issue is also pertinent, as follows:
‘It is clear from article 76, paragraph 8, of the Convention that the limits of the
continental shelf beyond 200 nm can be established only by the coastal State.
Although this is a unilateral act, the opposability with regard to other States of the
limits thus established depends upon satisfaction of the requirements specified in
15 Conclusion No.10 of ILA, Report of the 72rd Conference, Toronto, Committee on Legal Issues of the
Outer Continental Shelf (CLIOCS), Second Report on Article 76 of the 1982 UN Convention on the
Law of the Sea (UNCLOS) London: ILA (2006).
16 Suzette V. Suarez, The Outer Limits of the Continental Shelf: Legal Aspects of their Establishment,
Berlin: Springer (2008) at 249.
17
Ibid. 18 McDorman (2002) op. cit., at 315.
19 Conclusion No.11 of 2006 ILA Report, op. cit. See also Richard J McLaughlin, ‘Maritime Boundary
Delimitation and Co-operative Management of Transboundary Hydrocarbons in the Ultra-Deep
Waters of the Gulf of Mexico’, in Seoung-Yong Hong and Jon M Van Dyke (eds) Maritime Boundary
Disputes, Settlement Processes and the Law of the Sea, Leiden: Martinus Nijhoff (2009) 199-230, at
223-224.
20 DISPUTE CONCERNING DELIMITATION OF THE MARITIME BOUNDARY BETWEEN
BANGLADESH AND MYANMAR IN THE BAY OF BENGAL, Bangladesh/Myanmar, ITLOS Case
No.16, 14 March, 2012. Accessible at: http://www.itlos.org
4 article 76, in particular compliance by the coastal State with the obligation to submit
to the Commission information on the limits.’21
B. Application of articles 76 and 82 to non-parties to the 1982 UNCLOS:
Case study of the USA
Despite the burgeoning number of state parties to UNCLOS,22 the legal position of a
non-party state vis-à-vis the UNCLOS continues to raise interesting issues, especially
so in this aspect of the law of the sea, due to the inherent nature of the sovereign
rights and jurisdiction over the continental shelf under international law, as codified
by article 77 of the UNCLOS. In the St Pierre and Miquelon case,23 for example,
Evans observes that since neither France nor Canada had ratified the 1982 UNCLOS
and it was not in force at the time of the decision, it is interesting that the Court (of
Arbitration) seems to have accepted that both article 76, and the idea that the area
beyond national jurisdiction is the common heritage of mankind in accordance with
the Convention, represented customary international law. 24 McDorman concurs,
while holding the view that non-parties to UNCLOS must nevertheless fulfil Article
76 criteria to effectuate a continental shelf claim beyond 200M.25 He notes that there
is no UNCLOS provision that prohibits non-parties from submitting their claims for
CLCS consideration. This is notwithstanding Tommy Koh’s authoritative view as
President of the UNCLOS III negotiation process that non-party states could not
utilise Article 76 criteria as customary international law to justify their extended
claims to an outer continental shelf beyond 200M, because ‘… the article contains
new law in that it has expanded the concept of the continental shelf to include the
continental slope and the continental rise.’26 The ILA Committee has also determined
that non-parties to UNCLOS do not have a right to make article 76 submissions to
the CLCS. 27 In any case, McDorman suggests that it is more difficult to assign
customary status to the institutional role of the Commission in confirming adherence
to Article 76 requirements by a non-party coastal state.28
Equally important for the present discussion is the relationship between coastal state
submissions relying on both the article 76 criteria as well as the procedure for
claiming a continental shelf area beyond 200M, and the article 82 revenue-sharing
obligation, considered in detail below. This link between the extension of sovereign
Ibid., para.407, at p.119.
As at 6 November 2012, UNCLOS has 164 Parties, see
http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm
23 Canada/France (Saint Pierre and Miquelon) Delimitation of Maritime Areas Arbitration, decision
of 10 June 1992, by a Court of Arbitration established by Agreement on 30 March 1989, 31 ILM (1992)
1145-1219.
24 Malcolm D. Evans, ‘Less Than an Ocean Apart: The St Pierre and Miquelon and Jan Mayen Islands
and the Delimitation of Maritime Zones,’ (1994), 43 ICLQ 678-696, noting Weil at para.42 of his
dissenting opinion in this case, where he doubted the customary law status of Art.76(4)-(9) of
UNCLOS.
25 McDorman (2002) op. cit., at 303-304.
26 See ‘A Constitution for the Oceans’, Remarks by Tommy T.B. Koh of Singapore, President of the
Third UN Conference on the Law of the Sea, adapted from statements of the President on 6 and 11
December, 1982 at the final session of the Conference at Montego Bay, at 2 of 5. Accessible at:
http://www.un.org/Depts/los/convention_agreements/texts/koh_english.pdf
27
Ibid., at … 28 McDorman (2002) op.cit.
21
22
5 rights and jurisdiction occasioned by a successful coastal state application to the
CLCS under article 76, and the revenue sharing requirement under article 82, is
confirmed by authoritative accounts of the UNCLOS III negotiations process as well
as several commentators since. To cite Koh again, ‘this concession (of the inclusion of
the continental slope and rise within the legal definition of the continental shelf) to
the broad margin states was in return for their agreement for revenue-sharing on the
continental shelf beyond 200 miles.’29 More recently, Kanehara too has highlighted
the connexion between these two provisions in the negotiation process of the
UNCLOS, while lamenting the lack of clear language and practical guidance for
effectuating this link within the Convention itself.30 In this regard, it should be
pointed that this link between articles 76 and 82 was not explicitly provided for in the
actual text of either relevant article (76 or 82).
Of particular interest in this context is the practice of the United States of America
(USA) as the most significant non-party state of UNCLOS. US practice is also of
interest because it is widely expected that the first successful exploitation of
hydrocarbon resources occurring beyond the 200M limit will take place in the
continental shelf area located in the waters of the Gulf of Mexico. For example, the
Perdido regional oil and gas spar production facility, at Alaminos Canyon Block 857,
is located approximately 220 miles (354 kms) or about 190M from Galveston, Texas
in the Gulf of Mexico. Shell, 35% shareholder and operator, along with BP, 27.5%,
and Chevron, 37.5%, are developing this host facility as a regional hub produces from
three fields: Great White, Silvertip and Tobago. The fields are situated on the Perdido
fold belt, offshore in the deep northwestern section of the Alaminos Canyon outer
continental shelf area. The fold belt region is in water depths ranging from 7,546 to
9,843 feet (2,300 to 3,000 meters), which are considered some of the deepest waters
in the Gulf. Since the project began, multiple world records were made in the
offshore industry. Perdido is the deepest oil development, the deepest drilling and
production platform, and will produce from the deepest subsea well in the world.31
Another long distance development project situated in the Gulf of Mexico is the
Jack/St Malo ultra-deepwater project, which comprises the joint development of the
Jack and St Malo oilfields. The fields are located 40km away from each other and
together are located 270 miles (435 kms) southwest of New Orleans. The Jack field
lies in Walker Ridge blocks 758 and 759 at a water depth of 7,000ft. Chevron owns a
50% interest in the field while Maersk and Statoil hold 25% each. The St Malo field
lies in Walker Ridge Block 678 at a water depth of 2,100ft. Chevron is the operator
with a 51% interest. Other partners include Petrobras (25%), Statoil (21.50%),
ExxonMobil (1.25%) and ENI (1.25%). The deepwater project was approved by the
partners in October 2010. An investment of $7.5bn will be made in the initial
development phase of the project. Production start-up is expected in 2014.32 The oil
Koh (1982) op. cit.
Atsuko Kanehara, ‘The Revenue-Sharing Scheme with respect to the Exploitation of the Outer
Continental Shelf under Article 82 of the UNCLOS – A Plethora of Entangling Issues’, text of
presentation at Seminar on the Establishment of the Outer Limits of the Continental Shelf beyond
200nm under UNCLOS – Its Implications for International Law, Ocean Policy Research Foundation,
on 27 February 2008, at 1-2. 31
Accessed from SubSeaAIQ offshore field development website:
http://www.subseaiq.com/data/Project.aspx?project_id=125&AspxAutoDetectCookieSupport=1 32 Accessed from Offshore Technology.com website at:
http://www.offshore-technology.com/projects/jackstmalodeepwaterp/
29
30
6 reserves in the Perdido, Jack and St Malo fields are all located in a geological
formation known as the Lower Tertiary (Wilcox) Trend.
Map 1: Perdido, Jack & St Malo oilfields in the Gulf of Mexico:
Image courtesy of Chevron
In jurisdictional terms, most of the western Gulf of Mexico falls within the 200M
limits of both the USA and Mexico, now delimited according to the equidistance
method under a 1997 Mexico-US treaty.33 However, according to McLaughlin, the
geography of this area of the Gulf leaves a triangular-shaped area roughly the size of
the US state of New Jersey (8,722 square miles) called the ‘Western Gap’, 34 where a
succeeding bilateral treaty was agreed in 2000 to delimit the Mexico-US maritime
boundary beyond 200M.35
A further reason to examine US practice in this area is that very little state practice,
apart from the US federal law contractual provisions cited below, have explicitly
linked these two aspects of the continental shelf regime beyond 200M. While
scholars are divided as to whether the USA should consider itself bound by the
criteria and procedure established by article 76 of UNCLOS, it is worthwhile
examining United States’ practice in this regard. Roach and Smith assert that the
USA ‘has recognized article 76 as reflecting customary international law.’36 However,
closer scrutiny of the published US position on this issue arguably reveals a more
nuanced US engagement with certain relevant provisions of article 76, rather than all
the provisions of this article.37 Specifically, the US Policy statement provides, inter
alia, as follows:
‘The United States has exercised and shall continue to exercise jurisdiction over its
continental shelf in accordance with and to the full extent permitted by international
law as reflected in Article 76, paragraphs (1), (2), and (3). At such time in the future
33
34
McLaughlin(2009) op. cit., at 199 and 208-209.
35
36 J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, 2nd
ed., The Hague: Martinus Nijhoff (1996) at 201, referring to a memorandum dated 17 November 1987,
of the US Federal Government Interagency Group on the Law of the Sea and Ocean Policy, sent from
Assistant Secretary John D. Negroponte to Deputy Legal Adviser Elizabeth Verville, State Department
File No. P89 0140-0428.
37 See: Policy Governing the Continental Shelf of the United States of America, attached to the above
memorandum, reproduced in Roach and Smith (1996) ibid., at 201-202.
7 that it is determined desirable to delimit the outer limit of the continental shelf of the
United States beyond two hundred nautical miles from the baseline from which the
territorial sea is measured, such delimitation shall be carried out in accordance with
paragraphs (4), (5), (6), and (7)…’38 Thus, the US Policy statement eschews reference
to the coastal state submission requirement to the CLCS and procedure for
establishing the final outer limits of its continental shelf by reference to the
Commission’s recommendations, under article 76(8). Despite the lack of putative US
engagement with the CLCS, Roach and Smith nevertheless affirm the significant role
played by the Commission in this procedure by going beyond the wording of article
76(8) itself and unequivocally stating that ‘the limits of the continental shelf
established by a coastal State on the basis of these (CLCS) recommendations are final
and binding on all States Parties to the Convention and on the International Seabed
Authority.’ 39
Neither is the article 82 revenue-sharing obligation specifically mentioned in this
statement of US Policy on the Continental Shelf, although it may be possible to infer
this duty as among those explicitly accepted by the US when the Policy statement
confirms that ‘(t)he United States shall continue to exercise its rights and duties
pertaining to tis continental shelf in accordance with international law.’40 (my italics)
In any case, the relationship between possible extension of US sea-bed jurisdiction
beyond 200M (in line with UNCLOS article 76 criteria) and its Article 82 obligations
is already reflected in US federal offshore oil and gas contractual terms.41 Indeed, as
the ISA technical report notes, ‘(s)ince at least 2001, and most recently at the time of
writing in 2008, the Minerals Management Service (MMS, Department of the
Interior) has advised lessees in successive rounds of leasing that contingent royalty
payment provisions would apply if the United States becomes a party to the LOS
Convention, prior to or during the life of a lease.’42
At this juncture, article 300 of UNCLOS on good faith and non-abuse of rights may
be invoked to provide some guidance for an interpretation in favour of the
conjunction of the extended continental shelf jurisdiction beyond 200M claimed
under article 76 alongside the revenue-sharing duty under article 82. The analytical
pathway is as follows: First, the general rule of treaty interpretation provided in
article 31 of the 1969 VCLT makes reference to the principle of ‘good faith’.43 This in
turn echoes article 26 of the 1969 Vienna Convention on the Law of Treaties (VCLT)
entitled: ‘pacta sunt servanda’, which requires that: ‘Every treaty in force is binding
upon the parties to it and must be performed by them in good faith.’ Article 300 of
the 1982 UNCLOS on the other hand provides that: ‘States Parties shall fulfil in good
faith the obligations assumed under this Convention and shall exercise the rights,
jurisdiction and freedoms recognized in this Convention in a manner that would not
constitute an abuse of right.’ According to McLaughlin, this provision has been
interpreted so as to ‘restrict both the unnecessary or arbitrary exercise of rights,
jurisdiction and freedoms, as well as the misuse of powers by the contracting
Ibid., at 201-202.
Ibid., at 203.
Ibid., at 202. 41 See: WESTERN PLANNING AREA, OIL & GAS LEASE SALE 207 (20 AUGUST 2008) FINAL
NOTICE OF SALE STIPULATION NO. 4 - LAW OF THE SEA CONVENTION ROYALTY PAYMENT,
Box 1, ISA Technical Study No.4 (2009) 7-8.
42 Ibid., at 5-6.
38
39
40
43
8 parties’44 to UNCLOS. Thus, it is possible to argue that article 300 provides for not
only the application of the well-known general principle of international law, and
indeed law generally, of ‘good faith’, but also for the additional and further
application of the principle of non-‘abuse of rights’45 within this context.
Applying both principles of ‘good faith’ and non-‘abuse of rights’ to the previously
acknowledged legal relationship between articles 76 and 82, it is submitted here that
where a coastal state (whether party or non-party to UNCLOS) chooses to formalise
its continental shelf beyond 200M under article 76, then the ‘good faith’ principle
will guide these states towards both fulfilling the criteria laid down in article 76 on
this matter, as well as complying with the revenue-sharing duty under article 82.
Moreover, non-compliance of this revenue-sharing obligation under article 82 would
arguably constitute an abuse of the exercise by the coastal state of the sovereign
rights and jurisdiction over natural resources in the continental shelf beyond 200m
as a result of reliance on article 76 of the Convention. In this way, it can possibly be
seen why the principle of non-‘abuse of rights’ was expressly linked to the principle of
‘good faith’ under article 300 of UNCLOS, unlike in general international law, as
expressed in article 31 of the VCLT.
II. Delimitation of the continental shelf beyond 200M between states
Turning to the second aspect of delimitation of the continental shelf beyond 200M
between adjacent or opposite States, an initial question is as to whether the generally
applicable rules of maritime delimitation are equally relevant for the delimitation of
these sea-bed areas. Here it is first important to note that there is no distinction
made in the relevant UNCLOS provisions in article 83 for delimitation of continental
shelf boundaries within and beyond 200M. Moreover, as Oude Elferink has
previously noted, several existing maritime boundary delimitation agreements
already make provision either implicitly or explicitly for boundary lines going beyond
200M. 46 More recently, Lathrop has also catalogued such maritime boundary
delimitations beyond 200M, 47 although he arrives at a lesser total than Oude
Elferink’s previous exercise. Previously, Colson had also considered several state
practice examples of maritime boundary delimitation beyond 200M and comes to,
inter alia, the following conclusions: ‘First, the coastal states concerned established
these bilateral boundaries on the assumption that the area in question was theirs to
delimit as outer continental shelf without reference to the commission. … Whatever
methodology the states employed to delimit the 200-nautical mile portion of the
boundary was extended and thus applied to the delimitation of the outer continental
44 McLaughlin (2009) op. cit., at 213 text to fn.76, citing Mc Laughlin, ‘UNCLOS and the Demise of the
United States’ Use of Trade Sanction to Protect Dolphins, Sea Turtles, Whales and other International
Marine Living Resources’, Ecology Law Quarterly, Vol.21 (1994) 1, at 57.
45 An example of the application of the latter principle of non-abuse of rights can be discerned from
the Barbados/Trinidad & Tobago arbitral decision, where the tribunal considered whether recourse
by Barbados to arbitration under article 287 and article 1 of annex VII of UNCLOS constituted an
abuse of right but ultimately concluded that this unilateral invocation of third-party dispute
settlement procedures under UNCLOS was not. See Barbados/Trinidad & Tobago award, op. cit.,
para.208, at 64.
46 Alex Oude Elferink, ‘The Impact of the Law of the Sea Convention on the Delimitation of Maritime
Boundaries’, in Davor Vidas & Willy Ostreng (eds.) (1999) op. cit., 457-469, at 464-465, providing a
list of them at fn.38.
47 Lathrop (2011) op. cit., at …
9 shelf (beyond 200M), … (and) while geological and geomorphological factors
pertaining to Article 76 criteria were clearly employed to determine the final point on
some of these boundaries, there is no evidence that such considerations figured in
the delimitation of the maritime boundary itself.’48 However, after outlining several
more hypothetical scenarios, Colson speculates that geological and geomorphological
factors will re-emerge in the law of maritime delimitation to fulfil the criteria under
article 76 for the final delineation of the outer continental shelf beyond 200M,
subject to confirmation by the CLCS.49 This view accords with an earlier contribution
to the literature, testifying to the longevity of the natural prolongation doctrine in
relation to continental shelf delimitation beyond 200M.50
Summarising the international jurisprudence on this issue, Oude Elferink
perceptively suggested (nearly 15 years ago!) that ‘if a feature is not of such a nature
as to disrupt the essential unity of the continental shelf, making it possible to
distinguish two separate natural prolongations, it is not an element to be taken into
account in a delimitation of the continental shelf between states.’51 Following this
point to its natural conclusion, Oude Elferink concludes that ‘once it is established
that two states are entitled to the same area of continental shelf beyond 200 nautical
miles under Article 76 of the LOS Convention, the criteria to be taken into account
under Article 76 do not have any role to play in the delimitation of the overlapping
claims of these states.’52 The prescience of these comments is evident in the recent
International Tribunal on the Law of the Sea (ITLOS) Judgment in the
Bangladesh/Myanmar case. 53 It should initially be noted that this decision
represents the first ever adjudication by the International Tribunal on the Law of the
Sea (ITLOS) on a maritime delimitation dispute. Moreover, both the relationship
between continental shelf entitlement from neighbouring country coastlines and its
delimitation beyond 200M were raised. The ITLOS pronouncements on these issues
are as follows:
‘Entitlement and delimitation
Delimitation presupposes an area of overlapping entitlements. Therefore, the first
step in any delimitation is to determine whether there are entitlements and whether
they overlap.
While entitlement and delimitation are two distinct concepts addressed respectively
in articles 76 and 83 of the Convention, they are interrelated. The Parties also
recognize the interrelationship between entitlement and delimitation….’
399. Thus the question the Tribunal should first address in the present case is
whether the Parties have overlapping entitlements to the continental shelf beyond
200 nm. If not, it would be dealing with a hypothetical question. (At p.118)
400. In the present case, the Parties have made claims to the continental shelf
beyond 200 nm which overlap. Part of this area is also claimed by India. Each Party
48 David Colson, Delimitation of the Outer Continental Shelf between Neighbouring States, AJIL,
Vol.97, No.1 (January, 2003) 91-107, at 96.
49 Ibid., at 107.
50 Jorgen Lilje-Jensen & Milan Thamsborg, The Role of Natural Prolongation in relation to Shelf
Delimitation beyond 200 Nautical Miles, Nordic Journal of International Law Vol.64 (1995) 619-645.
51 Oude Elferink (1999) op. cit., at 463.
52 Ibid., at 463-464.
53 ITLOS, Case No.16, 14 March 2012, op. cit.
10 denies the other’s entitlement to the continental shelf beyond 200 nm. Furthermore,
Myanmar argues that the Tribunal cannot address the issue of the entitlement of
either Bangladesh or Myanmar to a continental shelf beyond 200 nm, as this is an
issue that lies solely within the competence of the Commission, not of the Tribunal.
401. Considering the above positions of the Parties, the Tribunal will address the
main point disputed by them, namely whether or not they have any entitlement to
the continental shelf beyond 200 nm. In this regard, the Tribunal will first address
the question of whether it can and should in this case determine the entitlements of
the Parties to the continental shelf beyond 200 nm. The Tribunal will next consider
the positions of the Parties regarding entitlements. It will then analyze the meaning
of natural prolongation and its interrelation with that of continental margin. Finally,
the Tribunal will determine whether the Parties have entitlements to the continental
shelf beyond 200 nm and whether those entitlements overlap. On the basis of these
determinations, the Tribunal will take a decision on the delimitation of the
continental shelf of the Parties beyond 200 nm. (p.118)
406. Regarding the question whether it can and should decide on the entitlements of
the Parties, the Tribunal first points out the need to make a distinction between the
notion of entitlement to the continental shelf beyond 200 nm and that of the outer
limits of the continental shelf.
407. It is clear from article 76, paragraph 8, of the Convention that the limits of the
continental shelf beyond 200 nm can be established only by the coastal State.
Although this is a unilateral act, the opposability with regard to other States of the
limits thus established depends upon satisfaction of the requirements specified in
article 76, in particular compliance by the coastal State with the obligation to submit
to the Commission information on the limits. (p.119)
408. The foregoing does not imply that entitlement to the continental shelf depends
on any procedural requirements.
409. A coastal State’s entitlement to the continental shelf exists by the sole fact that
the basis of entitlement, namely, sovereignty over the land territory, is present. It
does not require the establishment of outer limits. Article 77, paragraph 3, of the
Convention, confirms that the existence of entitlement does not depend on the
establishment of the outer limits of the continental shelf by the coastal State. (paras
408 and 409, at p.120)
410. Therefore, the fact that the outer limits of the continental shelf beyond 200 nm
have not been established does not imply that the Tribunal must refrain from
determining the existence of entitlement to the continental shelf and delimiting the
continental shelf between the parties concerned. (p.120)
Within this context, it is pertinent to highlight the significance with which the
Tribunal considered that ‘the thick layer of sedimentary rocks covers practically the
entire floor of the Bay of Bengal, including areas appertaining to Bangladesh and
Myanmar, … (thus) indicating that the entitlement (of both Bangladesh and
Myanmar) to the continental margin extending beyond 200 nm is based to a great
extent on the thickness of sedimentary rocks pursuant to the formula contained in
article 76, paragraph 4(a)(i), of the Convention.’
11 This in turn led the Tribunal to arrive at the following conclusion: ‘In view of
uncontested scientific evidence regarding the unique nature of the Bay of Bengal and
information submitted during the proceedings, the Tribunal is satisfied that there is
a continuous and substantial layer of sedimentary rocks extending from Myanmar’s
coast to the area beyond 200 nm.’54
455. In the view of the Tribunal, the delimitation method to be employed in the
present case for the continental shelf beyond 200 nautical miles should not differ
from that within 200 nm. Accordingly, the equidistance/relevant circumstances
method continues to apply for the delimitation of the continental shelf beyond 200
nm. This method is rooted in the recognition that sovereignty over the land territory
is the basis for the sovereign rights and jurisdiction of the coastal State with respect
to both the exclusive economic zone and the continental shelf. This should be
distinguished from the question of the object and extent of those rights, be it the
nature of the areas to which those rights apply or the maximum seaward limits
specified in articles 57 and 76 of the Convention. The Tribunal notes in this respect
that this method can, and does in this case, permit resolution also beyond 200 nm of
the problem of the cut-off effect that can be created by an equidistance line where the
coast of one party is markedly concave (see paragraphs 290-291). (at p.132)
460. …. The Tribunal has determined that both Parties have entitlements to a
continental shelf beyond 200 nm in accordance with article 76 and has decided that
those entitlements overlap. …(p.133)
461. Having considered the concavity of the Bangladesh coast to be a relevant
circumstance for the purpose of delimiting the exclusive economic zone and the
continental shelf within 200 nm, the Tribunal finds that this relevant circumstance
has a continuing effect beyond 200 nm. (at p.133)
At p.134:
462. The Tribunal therefore decides that the adjusted equidistance line delimiting
both the exclusive economic zone and the continental shelf within 200 nm between
the Parties as referred to in paragraphs 337-340 continues in the same direction
beyond the 200 nm limit of Bangladesh until it reaches the area where the rights of
third States may be affected.
On the other hand, it is notable that until this very recent ITLOS decision in the
Bangladesh/Myanmar case (delivered on 14 March, 2012), no international court or
tribunal has directly undertaken the task of continental shelf delimitation beyond
200M. For example, Evans has noted that in the St Pierre and Miquelon case
between France and Canada, France argued that it was entitled to exercise
continental shelf jurisdiction beyond 200 nautical miles and out to the edge of the
continental margin based upon Article 76(4)(a)(ii) of the 1982 Law of the Sea
Convention.55 Canada on the other hand, questioned the existence of a margin so
defined in the area claimed by France. 56 The Court decided that it could not
determine the outer limit of the French corridor both because this would involve it in
54
paras 445 & 446, at p.130. Evans op. cit., at 688-689.
56 St Pierre and Miquelon arbitral award, ibid., at para.76.
55
12 effecting a delimitation ‘not between the parties but between one of the them and the
international community and because it was not competent to carry out a
delimitation which affects the rights of a Party which is not before it.’57 (my italics)
The Court’s stance in this context was criticised by Highet, who argues that the Court
could not have drawn a line beyond 200M because it was empowered to draw only a
single line, and this implied a simultaneous delimitation of the seabed and water
column, in effect limiting the delimitation only to that of an EEZ.58 This receives
some support from the decision itself, which noted that the ‘Special Agreement’
establishing the Court of Arbitration for this dispute enjoined it to 'establish a single
delimitation which shall govern all rights of jurisdiction which the parties may
exercise in these maritime areas', and that ‘(t)his provision mandates a single
boundary line that would apply to both the seabed and the superadjacent waters in
the area subject to the delimitation.’59 Evans notes that it is difficult to understand
why the phrase ‘all rights of jurisdiction’ should be understood as excluding the
continental shelf simpliciter.60 Nevertheless, the Court stressed that it was in no way
‘prejudging, accepting or refusing the rights that may be claimed by France, or by
Canada, to a continental shelf beyond 200 miles.’61
In her exegesis of the Barbados/Trinidad and Tobago arbitral tribunal award,62
Kwiatkowska contrasted the reluctance displayed in the 1992 Canada/France (Saint
Pierre et Miquelon) Maritime Delimitation award (which was relied upon by
Barbados) with the arbitral tribunal's finding in this case that the outer continental
shelf beyond 200M was within the scope of the dispute that was submitted to
arbitration and fell within its jurisdiction.63 The tribunal decided that:
‘(i) it has jurisdiction to delimit, by the drawing of a single maritime boundary, the
continental shelf and EEZ appertaining to each of the Parties in the waters where
their claims to these maritime zones overlap;
(ii) its jurisdiction in that respect includes the delimitation of the maritime boundary
in relation to that part of the continental shelf extending beyond 200 nm;…’64
The Tribunal was also convinced that its jurisdiction over delimitation of the outer
continental shelf would not interfere with the core function of the Commission on the
Limits of the Continental Shelf.65 However, it would appear that even when an
international tribunal decides that it does have jurisdiction to delimit a continental
shelf boundary beyond 200M, other issues can intervene. Thus, despite its initial
finding for jurisdiction, the Tribunal appeared to hold that second element
(delimitation beyond 200M) was subsumed within its initial jurisdiction to delimit a
single maritime boundary for the overlapping EEZ and continental shelf claims
between the two States. The Tribunal therefore concluded that ‘it has jurisdiction to
decide upon the delimitation of a maritime boundary in relation to that part of the
Ibid., at paras.78-79.
K. Highet, ‘Delimitation of the Maritime Areas Between Canada and France’ 87 AJIL ( 1993) 452-64,
at 456.
59 St Pierre and Miquelon award, op. cit, at para.82.
60 Evans op. cit., at
61 Ibid., para.80.
62 Barbados/Trinidad & Tobago, award (2006)
63 Barbara Kwiatkowska, Barbados/Trinidad and Tobago, award on jurisdiction and merits,
American Journal of International Law, Vol.101, No.1 (Jan., 2007) 149-157.
64 Award (2006) op. cit., at para.217.
65Kwiatkowska (2007) op. cit., at 152.
57
58
13 continental shelf extending beyond 200 nm. As will become apparent, however, the
single maritime boundary which the Tribunal has determined is such that, as
between Barbados and Trinidad & Tobago, there is no single maritime boundary
beyond 200 nm. The problems posed by the relationship in that maritime area of CS
and EEZ rights are accordingly problems with which the Tribunal has no need to deal.
The Tribunal therefore takes no position on the substance of the problem posed by
the argument advanced by Trinidad and Tobago.’66
According to Kwiatkowska,67 a major consideration for the Tribunal in arriving at
this rather damp squib of a conclusion on this issue relates to what Barbados
characterized as an ‘unworkable situation of overlap between sea-bed and water
column rights.’68 Although the Tribunal ultimately took no position on the substance
of the problem posed by Trinidad and Tobago's claim, Kwiatkowska nevertheless
suggests that certain doubts as to the practical implementation of the overlap in
question could perhaps be inferred from the Tribunal's general emphasis that its
single boundary line had to be ‘both equitable and as practically satisfactory as
possible, while at the same time in keeping with the requirement of achieving a
stable legal outcome.’69 (her italics)
Kwiatkowska goes on to observe that: This holding was obviously intended to express
the overall approach of the Tribunal to equitable maritime boundary delimitation,
but when read from the viewpoint of a suggested EEZ/Outer CS overlap, it could be
construed as implying that such an overlap neither would be ‘as practically
satisfactory as possible’, nor would it contribute to ‘a stable legal outcome’. This is
because all the sovereign rights and jurisdiction which the coastal state possesses
within its EEZ - except those over pelagic fisheries [sedentary fisheries remaining
within shelf rights], non-resource related economic activities and vessels source
pollution - are the same as its rights and jurisdiction within the continental shelf, for
which reason the shelf regime within 200 miles is, as LOSC Article 56(3) evidences,
absorbed by the legal regime of the EEZ.108
(108 For this reason Barbados was correct in arguing, that Article 56(3) prescribes
method and not, as Trinidad and Tobago argued, subordination of the EEZ to the
continental shelf or priority of the shelf rights over EEZ rights. This approach
conforms with ICJ Judge Shigeru Oda's theory of EEZ-CS parallelism, as discussed
by B. Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the
Sea 6-44 (1989). See also 2006 Barbados/Trinidad & Tobago Award, para.182)
Within area of overlapping EEZ/Outer CS, it could, on its face, be possible to confine
Barbados' competences only to its sovereign rights over pelagic fisheries and nonresource related economic activities [such as production of energy from waters,
currents or winds] and to its jurisdiction over vessel-source pollution. But even such
reduced EEZ rights would have great potential for conflict. The most sensitive part
would be the effecting of a clear-cut distinction of all the remaining rights and
jurisdiction, which would then in principle be absorbed from the Barbados' EEZ back
Barbados/Trinidad & Tobago award (2006) at para.368.
Barbara Kwiatkowska, ‘THE 2006 BARBADOS/TRINIDAD AND TOBAGO AWARD: A
LANDMARK IN COMPULSORY JURISDICTION AND EQUITABLE MARITIME BOUNDARY
DELIMITATION’, 22 INTERNATIONAL JOURNAL OF MARINE & COASTAL LAW (2007) 7-60 at
54-55.
68 Barbados/Trinidad & Tobago award (2006) op.cit., at paras 178, and 180-185.
69 Ibid., paras 244 and 368.
66
67
14 into Trinidad's Outer CS, but which could nevertheless raise all kinds of practical
controversies concerning the specific competences.70
(Barbara Kwiatkowska, THE 2006 BARBADOS/TRINIDAD AND TOBAGO AWARD: A LANDMARK
IN COMPULSORY JURISDICTION AND EQUITABLE MARITIME BOUNDARY DELIMITATION, 22
INTERNATIONAL JOURNAL OF MARINE & COASTAL LAW (2007) 7-60 at 54-55.)
Consequently, unless jointly and exceptionally agreed upon bona fide by both
parties, which as Kwiatkowska points out was not the case in the Barbados/Trinidad
and Tobago proceedings, the establishment of any area of overlapping EEZ/Outer
CS that would involve such a multiplicity of intertwined rights and jurisdiction of two
coastal states, and which would also have to be duly coordinated with the high seas
jus communicationis exercised within this area by all other states by virtue of Articles
58 and 78, could - as Barbados correctly maintained - be viewed as "a formula for
chaos and conflict".111 An Award which endorsed such a solution - in its maximalist
form as claimed by Trinidad and Tobago or in any lesser form of a narrower corridor
- would, in effect, amount to dispute stimulation rather than dispute resolution, and
would be particularly unwarrantable in such a strategically important region as is the
Caribbean Sea.110 (K, ibid., at 56)
See also B Oxman, ‘THE BARBADOS/TRINIDAD & TOBAGO ARBITRATION The Law of Maritime
Delimitation: Back to the Future’, Introduction to THE BARBADOS/TRINIDAD AND TOBAGO
ARBITRATION AWARD OF 2006. The Hague, The Netherlands: T.M.C. Asser Press (2009)
The ‘grey area’ issue alluded to in the Barbados/Trinidad & Tobago arbitration, as
well as Kwiatkowska’s analysis of the implications of this case (above) was raised
again in the Bangladesh/Myanmar case as follows:
“Grey area”
463. The delimitation of the continental shelf beyond 200 nm gives rise to an area of
limited size located beyond 200 nm from the coast of Bangladesh but within 200 nm
from the coast of Myanmar, yet on the Bangladesh side of the delimitation line.
464. Such an area results when a delimitation line which is not an equidistance line
reaches the outer limit of one State’s exclusive economic zone and continues beyond
it in the same direction, until it reaches the outer limit of the other State’s exclusive
economic zone. In the present case, the area, referred to by the Parties as a “grey
area”, occurs where the adjusted equidistance line used for delimitation of the
continental shelf goes beyond 200 nm off Bangladesh and continues until it reaches
200 nm off Myanmar.
471. The Tribunal notes that the boundary delimiting the area beyond 200 nm from
Bangladesh but within 200 nm of Myanmar is a boundary delimiting the continental
shelves of the Parties, since in this area only their continental shelves overlap. There
is no question of delimiting the exclusive economic zones of the Parties as there is no
overlap of those zones. (p.136)
472. The grey area arises as a consequence of delimitation. Any delimitation may give
rise to complex legal and practical problems, such as those involving transboundary
70
Kwiatkowska (2007) ibid.
15 resources. It is not unusual in such cases for States to enter into agreements or
cooperative arrangements to deal with problems resulting from the delimitation.
473. The Tribunal notes that article 56, paragraph 3, of the Convention, provides that
the rights of the coastal State with respect to the seabed and subsoil of the exclusive
economic zone shall be exercised in accordance with Part VI of the Convention,
which includes article 83. The Tribunal further notes that article 68 provides that
Part V on the exclusive economic zone does not apply to sedentary species of the
continental shelf as defined in article 77 of the Convention.
474. Accordingly, in the area beyond Bangladesh’s exclusive economic zone that is
within the limits of Myanmar’s exclusive economic zone, the maritime boundary
delimits the Parties’ rights with respect to the seabed and subsoil of the continental
shelf but does not otherwise limit Myanmar’s rights with respect to the exclusive
economic zone, notably those with respect to the superjacent waters.
At p.137:
475. The Tribunal recalls in this respect that the legal regime of the continental shelf
has always coexisted with another legal regime in the same area. Initially that other
regime was that of the high seas and the other States concerned were those
exercising high seas freedoms. Under the Convention, as a result of maritime
delimitation, there may also be concurrent exclusive economic zone rights of another
coastal State. In such a situation, pursuant to the principle reflected in the provisions
of articles 56, 58, 78 and 79 and in other provisions of the Convention, each coastal
State must exercise its rights and perform its duties with due regard to the rights and
duties of the other.
476. There are many ways in which the Parties may ensure the discharge of their
obligations in this respect, including the conclusion of specific agreements or the
establishment of appropriate cooperative arrangements. It is for the Parties to
determine the measures that they consider appropriate for this purpose.’
The Tribunal’s conclusions on the ‘grey area’ issue highlight the inherent limitations
of single-line boundaries in areas of different and overlapping functional jurisdiction
zones such as the EEZ and continental shelf, especially in the presence of shared
(fisheries) and transboundary (hydrocarbon/mineral) natural resources. The
potentially complicated overlapping jurisdictional scenarios highlighted by
Kwiatkowska in her analysis of the implication of the Barbados/Trinidad & Tobago
award also make the case for the adoption of co-operative management-type
solutions between the states involved.
Coincidentally and serendipitously, as well as almost simultaneously – taking place
only a day earlier than the above judgment, on 13 March 2012 - two other states on
the far (western) side of the Indian Ocean, namely, Mauritius and the Seychelles,
were adopting a quite far-reaching couple of co-operative agreements providing for
the Joint Sovereign Rights and Joint Management of their overlapping continental
shelf areas beyond 200M. These agreements arguably represent the natural
extension of the ITLOS findings on continental shelf entitlement and its relationship
with maritime boundaries beyond 200M as between Bangladesh and Myanmar in
this case. The next section of this paper will therefore be devoted to the implications
of these two agreements between Mauritius and the Seychelles.
16 A. Mauritius-Seychelles agreement(s) for joint development of their
overlapping continental shelves beyond 200M
Two recent agreements between the island Republics of Mauritius and the Seychelles
respectively herald an unprecedented example of State practice for putative joint
development of natural resources within their overlapping continental shelf areas
beyond 200M. These two States are small island nations located in the south-western
corner of Indian Ocean and are both Contracting Parties to the 1982 UN Convention
on the Law of the Sea (UNCLOS). In this regard, the two States respectively signed
the Convention when it was opened for signature on 10 December 1982. The
Republic of Seychelles subsequently ratified the Convention on 16 September 1991.
The Republic of Mauritius ratified the Convention on 4 November 1994. On 1
December 2008, the Republic of Mauritius and the Republic of Seychelles submitted
to the Commission on the Limits of the Continental Shelf, in accordance with Article
76, paragraph 8, of the United Nations Convention on the Law of the Sea,
information on the limits of the continental shelf appurtenant to the Republic of
Mauritius and the Republic of Seychelles, which lie beyond 200 nautical miles from
the baselines from which the breadth of the territorial sea of the two States is
measured in the region of the Mascarene Plateau.
Following their successful joint submission to the CLCS for an ‘extended’ continental
shelf beyond 200M in 2008, which was the subject of favourable recommendations
by the CLCS on 30 March 2011;71 these two island States gained an additional of
396,000 square kilometres of continental shelf in the Indian Ocean – an area
equivalent in size to Germany.72 They then proceeded to agree the following two
treaties, namely, the Treaty concerning the Joint Exercise of Sovereign Rights Over
the Continental Shelf in the Mascarene Plateau Region (entry into force: 18 June
2012; registration #: 49782; registration date: 11 July 2012; link to UNTS) (see Law
of the Sea Bulletin No. 79); and the Treaty concerning the Joint Management of the
Continental Shelf in the Mascarene Plateau Region (entry into force: 18 June 2012;
registration #: 49783; registration date: 11 July 2012; link to UNTS) (see Law of the
Sea Bulletin No. 79)
71 Interestingly, Lathrop does not mention this particular Joint Submission in his otherwise
comprehensive round-up of the different types of submissions made by States to the CLCS. See
Lathrop (2011) ????-????
72 See: ‘Mauritius and Seychelles successfully claim 396,000 km of additional seabed’, 6 May 2011,
Commonwealth Secretariat website. Accessed at:
http://www.thecommonwealth.org/news/34580/34581/236405/050511unseabed.htm
17 Map 2: Mauritius-Seychelles Joint Management Zone incorporating their
Joint Sovereign Rights, under their respective 2012 Treaties
18 Treaty Concerning the Joint Exercise of Sovereign Rights over the
Continental Shelf in the Mascarene Plateau Region
THE GOVERNMENT OF THE REPUBLIC OF MAURITIUS and THE
GOVERNMENT OF THE REPUBLIC OF SEYCHELLES ("the Contracting Parties")
RECALLING that both countries being coastal States co-operated on the basis of the
Treaty between the Government of the Republic of Seychelles and the Government
of the Republic of Mauritius on the Framework for a Joint Submission to the United
Nations Commission on the Limits of the Continental Shelf dated 18 September
2008, as subsequently amended, to lodge on 1 December 2008 the Joint
Submission to the United Nations Commission on the Limits of the Continental Shelf
(‘the Commission’) concerning the Mascarene Plateau region ("Joint Submission")
under Article 76, paragraph 8 of the United Nations Convention on the Law of the
Sea done at Montego Bay on 10 December 1982 ("the Convention");
RECALLING ALSO that on 30 March 2011, the Commission adopted
recommendations confirming the entitlement of the Contracting Parties to the area
of continental shelf submitted by them in the Joint Submission, as contained in the
Commission document entitled Recommendations of the Commission on the Limits
of the Continental Shelf in regard to the Joint Submission made by Mauritius and
Seychelles in respect of the Mascarene Plateau Region on 1 December 2008;
NOTING that Article 76 of the Convention provides that the limits of the continental
shelf established by coastal States on the basis of the recommendations of the
Commission shall be final and binding;
NOTING ALSO that Article 83 of the Convention provides that the delimitation of
the continental shelf between States with opposite coasts shall be effected by
agreement on the basis of international law in order to achieve an equitable solution
and, in the absence of delimitation, that States shall make every effort in a spirit of
understanding and co-operation to enter into provisional arrangements of a practical
nature which do not prejudice a final delimitation of the continental shelf;
HAVE AGREED as follows:
Article 1: Joint Exercise of Sovereign Rights over the Continental Shelf
The Contracting Parties shall exercise sovereign rights jointly for the purpose of
exploringthe continental shelf and exploiting its natural resources in the area
described in Article 2 (‘the Joint Zone’).
Article 2: Delineation of the Joint Zone
The Joint Zone is defined by designated points, the coordinates of latitude and
longitude [referred to the World Geodetic System (WGS84)] of which are set out at
Annex 1 to this Treaty, and as illustrated in the map at Annex 2 of this Treaty.
The boundary line between these points is a geodesic.
Article 3: Treaty without Prejudice (sic) provides that Nothing contained in this
Treaty, and no act taking place whilst this Treaty is in force, shall be interpreted as
prejudicing or affecting the legal position or rights of the Contracting Parties
concerning any future delimitation of the continental shelf between them in the
Mascarene Plateau Region.
Article 4: Entry into Force
(a) Each Contracting Party shall notify the other, by means of exchange of
diplomatic notes, the completion of the procedures required by its law for the
19 bringing into force of this Treaty. The Treaty shall enter into force on the date
of receipt of the later notification.
(b) Upon entry into force, the Treaty shall be taken to have effect, and all of its
provisions shall be taken to have applied, from the date of signature.
IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their
respective Governments, have signed this Treaty.
DONE at Clarisse House, Vacoas, Mauritius in duplicate on this 13thday of March
Two Thousand and Twelve in the English language.
For the Government of the Republic of Mauritius
Dr the Hon Navinchandra RAMGOOLAM, GCSK., FRCP, Prime Minister
For the Government of the Republic of Seychelles
H. E. Mr. James Alix MICHEL, President
Treaty concerning the Joint Exercise of Sovereign Rights over the Continental Shelf
in the Mascarene Plateau Region (adopted & signed: 13 March, 2012; entry into force:
18 June 2012; registration #: 49782; registration date: 11 July 2012; link to UNTS)
(see Law of the Sea Bulletin No. 79)
Treaty concerning the Joint Management of the Continental Shelf in the Mascarene
Plateau Region (adopted & signed: 13 March 2012; entry into force: 18 June 2012;
registration #: 49783; registration date: 11 July 2012; link to UNTS) (see Law of the
Sea Bulletin No. 79)
Treaty Concerning the Joint Management of the Continental Shelf in the
Mascarene Plateau Region
THE GOVERNMENT OF THE REPUBLIC OF MAURITIUS
and
THE GOVERNMENT OF THE REPUBLIC OF SEYCHELLES
("the Contracting Parties")
SEEKING to promote the sustainable and long-term economic and social
development of their respective small island countries for the benefit of present and
future generations;
COMMITTED to maintaining, renewing and further strengthening the mutual
respect, goodwill, friendship and co-operation between their two countries;
ACKNOWLEDGING the existence of an overlapping area of continental shelf
extending beyond the Exclusive Economic Zone boundaries established by their two
countries under the Treaty between the Government of the Republic of Mauritius
and the Government of the Republic of Seychelles on the Delimitation of the
Exclusive Economic Zone between the two States dated 29 July 2008;
RECALLING that both countries co-operated on the basis of the Treaty between the
Government of the Republic of Seychelles and the Government of the Republic of
Mauritius on the Framework for a Joint Submission to the United Nations
Commission on the Limits of the Continental Shelf dated 18 September 2008, as
subsequently amended, to lodge on 1 December 2008 the Joint Submission to the
United Nations Commission on the Limits of the Continental Shelf (‘the Commission’)
concerning the Mascarene Plateau region ("Joint Submission") under Article 76,
paragraph 8 of the United Nations Convention on the Law of the Sea done at
Montego Bay on 10 December 1982 ("the Convention");
20 RECALLING ALSO on 30 March 2011, the Commission adopted recommendations
confirming the entitlement of their two countries to the area of continental shelf as
contained in the Commission document entitled Recommendations of the
Commission on the Limits of the Continental Shelf in regard to the Joint Submission
made by Mauritius and Seychelles in respect of the Mascarene Plateau Region on 1
December 2008;
CONSCIOUS that the Convention provides in Article 83 that the delimitation of the
continental shelf between States with opposite coasts shall be effected by agreement
on the basis of international law in order to achieve an equitable solution and, in the
absence of delimitation, that States shall make every effort in a spirit of
understanding and co-operation to enter into provisional arrangements of a practical
nature which do not prejudice a final determination of the extended continental shelf
delimitation;
RECOGNISING the importance of providing an equitable and co-operative legal
basis for the exercise by their two countries of their sovereign rights and jurisdiction
over the continental shelf in the Mascarene Plateau Region in accordance with
international law;
REAFFIRMING the Treaty Concerning the Joint Exercise of Sovereign Rights over
the Continental Shelf in the Mascarene Plateau Region of 13 March 2012, under
which the Contracting Parties established the outer limits of the continental shelf in
the Mascarene Plateau Region and agreed to exercise sovereign rights jointly for the
purpose of exploring the continental shelf and exploiting its natural resources;
MINDFUL of the importance of jointly managing the natural resources of the
continental shelf in the Mascarene Plateau Region in a manner that is sustainable
and consistent with the precautionary principle and the protection of the marine
environment and the biological diversity of the continental shelf;
DESIRING to enter into an international agreement to provide an effective and
equitable framework to govern the joint management of the continental shelf in the
Mascarene Plateau Region;
HAVE AGREED as follows:
PART 1: PRELIMINARY
Article 1: Definitions
For the purposes of this Treaty:
(a) "Authority" means the Designated Authority established in Article 4 of this
Treaty;
(b) "bioprospecting" means the examination of biological resources for features
including but not limited to chemical compounds, genes and their products and
physical properties that may be of value for commercial development;
(c) “Commission” means the Joint Commission established under Article 4 of this
Treaty;
(d) “continental shelf” has the meaning contained in Article 76 of the Convention;
(e) "contractor" means a corporation, company or other legal entity or entities with
limited liability that enter into a contract with the Designated Authority and which
are duly regulated;
(f) "Convention" means the United Nations Convention on the Law of the Sea done
at Montego Bay on 10 December 1982;
(g) "criminal law" means any law in force in the territory of either of the Contracting
Parties, whether substantive or procedural, that makes provision for, or in relation
to offences, or for or In relation to the investigation or prosecution of offences or
21 the punishment of offenders, including the carrying out of a penalty imposed by a
court. For this purpose, "investigation" includes entry to an installation or
structure in the JMA, the exercise of powers of search and questioning and the
apprehension of a suspected offender;
(h) "Council" means the Ministerial Council established in Article 4 of this Treaty;
(i) "initially processed" means processing of petroleum to a point where it is ready
for off-take from the production facility and may include such processes as the
removal of water, volatiles and other impurities;
(j) "JMA" means the Joint Management Area established in Article 3 of this Treaty;
(k) "minerals" means any naturally occurring element, compound or substance,
amorphous or crystalline (including liquid crystalline compounds), formed through
geological or biogeochemical processes and any naturally occurring mixture of
substances, including in the form of coal, clay, evaporates, gravel, limestone, oilshale,
sand, shale, rock, and polymetallic nodules;
(l) “natural resources” means the mineral, petroleum and other non-living resources
of the seabed and subsoil of the continental shelf together with living organisms
belonging to sedentary species that are at the harvestable stage either immobile
on or under the seabed or are unable to move except in constant physical
contact with the seabed or subsoil;
(m) "natural resource activities" means all activities authorised or contemplated
under a contract, permit or licence that are undertaken to explore and exploit natural
resources in the JMA including but not limited to development, initial processing,
harvesting, production, transportation and marketing, as well as the planning and
preparation for such activities;
(n) "natural resource codes" means codes referred to in Article 8 of this Treaty;
(o) “natural resources project" means any natural resource activity taking place with
the approval of the Designated Authority in a specified area of the JMA;
(p) "petroleum" means any naturally occurring hydrocarbon, whether in a gaseous,
liquid, or solid state and any naturally occurring mixture of hydrocarbons, whether
in a gaseous, liquid or solid state, together with other substances produced in
association with such hydrocarbons, and includes any petroleum that has been
returned to a reservoir;
(q) "petroleum produced" means initially processed petroleum extracted from a
reservoir through petroleum activities;
(r) "reservoir" means an accumulation of petroleum in a geological unit limited by
rock, water or other substances without pressure communication through liquid
or gas to another accumulation of petroleum;
(s) "Taxation Code" means the Code referred to in Article 6 of this Treaty;
(t) "Treaty" means this Treaty, including Annexes A-D and any Annex that may
subsequently be agreed by the Contracting Parties to form a part of this Treaty.
Article 2: Treaty without Prejudice
(a) This Treaty gives effect to international law as reflected in the Convention which
under Article 83 requires States with opposite or adjacent coasts to make every effort
to enter into provisional arrangements of a practical nature pending agreement on
the final delimitation of the continental shelf between them in a manner consistent
with international law. This Treaty is intended to adhere to such obligation.
(b) Nothing contained in this Treaty, and no act taking place while this Treaty is in
force, shall be interpreted as prejudicing or affecting the legal position or rights of
the Contracting Parties concerning their respective continental shelf entitlements or
the delimitation of the continental shelf.
22 PART 2: THE JOINT MANAGEMENT AREA
Article 3: Joint Management Area
(a) The Joint Management Area (JMA) is established in respect of the Joint Zone
described in Article 2 of the Treaty Concerning the Joint Exercise of Sovereign Rights
over the Continental Shelf in the Mascarene Plateau Region, done on 13 March 2012
and as depicted in the map at Annex A.
(b) The Contracting Parties shall jointly control, manage and facilitate the
exploration of the continental shelf within the JMA and the conservation,
development and exploitation of its natural resources.
(c) Natural resource activities in the JMA shall be carried out under the direction of
the Designated Authority, by such means as it may determine in accordance with this
Treaty, including where appropriate through the issue of licences or pursuant to
contracts between the Authority and a contractor. This provision shall also apply to
the successors or assignees of such contractors.
(d) The Contracting Parties shall each make it an offence under their respective
national laws for any person to conduct resource activities in the JMA otherwise than
in accordance with this Treaty.
PART 3: INSTITUTIONAL AND REGULATORY ARRANGEMENTS
Article 4: Regulatory Bodies
(a) A three-tiered joint administrative structure consisting of a Ministerial Council, a
Joint Commission and a Designated Authority, is established.
(b) Ministerial Council:
i. A Ministerial Council for the JMA is hereby established. The Ministerial Council
shall consist of an equal number of Ministers designated by the Contracting Parties.
ii. The Ministerial Council shall consider any matter relating to the operation of
this Treaty that is referred to it by either of the Contracting Parties. It shall also
consider any matter referred to under sub-paragraph (c) (iii).
iii. The Ministerial Council shall meet at the request of either Contracting Party
or at the request of the Commission.
iv. All decisions of the Ministerial Council shall be adopted by consensus. In the
event the Council is unable to resolve a matter, either of the Contracting
Parties may invoke the dispute resolution procedure provided under Article
v. No decision of the Ministerial Council shall be valid unless it is recorded in
writing and signed by at least one member from each Contracting Party.
vi. The Ministerial Council shall establish its own procedures, including those in
relation to taking decisions out of session and for conducting meetings by
means of telephonic and electronic communication.
(c) Joint Commission:
i. The Joint Commission shall consist of an equal number of commissioners
appointed by the Contracting Parties. The Joint Commission shall establish
policies and regulations relating to petroleum and other natural resource
activities in the JMA and shall oversee the work of the Authority.
ii. A non-exhaustive list of more detailed powers and functions of the Joint
Commission is set out in Annex C. This list may be amended from time to
time as necessary.
iii. The Joint Commission may at any time refer a matter to the Ministerial
Council for resolution.
23 iv. The Joint Commission shall meet at least once a year in the Contracting
Parties on an alternate basis, or otherwise as agreed, and each meeting shall
be co-chaired.
v. Decisions of the Joint Commission shall be made by consensus.
(d) Designated Authority:
i. The Joint Commission shall establish the Designated Authority (“Authority”).
ii. The Authority shall have juridical personality and such legal capacities under
the law of the Contracting Parties as are necessary for the exercise of its
powers and the performance of its functions. It shall have the capacity to
contract, to acquire and dispose of movable and immovable property and to
institute and be party to legal proceedings.
iii. The Authority shall be responsible to the Joint Commission and shall carry on
the day-to-day regulation and management of natural resource activities in the JMA.
iv. A non-exhaustive list of more detailed powers and functions of the Authority is
contained in Annex D. The Annexes to this Treaty may identify other additional
powers and functions of the Authority. The Authority also has such other powers and
functions as may be conferred upon it by the Commission.
v. The Authority shall be financed on an equal basis by the Contracting Parties,
including eventually through the remittance of fees collected under natural
resource codes.
vi. The Authority shall be exempt from:
(1) income tax or business tax, as the case may be; and
(2) customs duties, excise tax, Value Added Tax (VAT), levy and other similar
taxes on imports for official use, imposed under the law in force in the
territory of each of the Contracting Parties, as well as any identical or
substantially similar taxes that are imposed after the date of signature of this
Treaty in addition to, or in place of, the existing taxes.
vii. Personnel of the Authority:
(1) shall be subject to taxation in the Contracting Party of which they are a
national and in accordance with the tax law of that Contracting Party in
respect of salaries, allowances and other payments made to them by the
Authority in connection with their employment with the Authority. For the
purposes of this paragraph the term "national" includes a resident of either
Contracting Party as defined in the income tax law of that Contracting Party;
and
(2) shall, at the time of the first taking up the post with the Authority located in
either of the Contracting Parties in which they are not resident, be exempt
from customs duties, excise tax, VAT, levy and other similar taxes and other
such charges (except payments for services) in respect of imports of furniture
and other household and personal effects including one motor vehicle in their
ownership or possession or already ordered by them and intended for their
personal use or for their establishment, subject to terms and conditions
established by the Joint Commission. Such goods shall be imported within
six months of an officer’s first entry but in exceptional circumstances an
extension of time shall be granted by the Contracting Parties respectively.
Goods that have been acquired or imported by officers and to which
exemptions under this sub-paragraph apply shall not be given away, sold,
lent or hired out, or otherwise disposed of except under conditions agreed in
advance depending on in which country the officer is located.
(e) No member of the Ministerial Council, Joint Commission and personnel of the
24 Authority shall have any financial or personal interest in any natural resource project
in the JMA.
Article 5: Sharing of Revenue
(a) The Contracting Parties shall share revenue received in respect of natural
resource activities carried out in the JMA equally, whereby fifty (50) per cent of
revenue received shall be remitted to Mauritius and fifty (50) per cent of revenue
received shall be remitted to Seychelles.
(b) To the extent that fees referred to in Article 4(d)(v) and other income are
inadequate to cover the expenditure of the Authority in relation to this Treaty, that
expenditure shall be borne by each of the Contracting Parties in the same proportion
as set out in paragraph (a).
(c) Paragraph (a) shall not apply to the equitable sharing of the benefits arising from
unitisation under Article 10 unless mutually agreed by the Contracting Parties.
Article 6: Taxation Code
(a) The Contracting Parties shall agree upon a Taxation Code applicable to income
derived from natural resource activities in the JMA.
(b) Neither Contracting Party may during the life of a natural resource project vary
any of the provisions of the Taxation Code applicable to it except by mutual
agreement.
Article 7: Application of Domestic Law
For the purposes of the application of the domestic laws of each Contracting Party
related directly or indirectly to:
i. the exploration of the continental shelf within the JMA and the development
and exploitation of natural resources in the JMA; and
ii. acts, matters, circumstances and things touching, concerning, arising out of
or connected with, natural resource activities in the JMA,
the JMA shall be deemed to be and treated by each Contracting Party as forming part
of its respective territory.
Article 10: Unitisation
(a) Any reservoir of petroleum or unitary mineral deposit that extends across or
straddles the boundary of the JMA into the Exclusive Economic Zone of either or
both Contracting Parties shall be treated as a single entity for exploration,
development and management purposes.
(b) The Contracting Parties shall work expeditiously and in good faith to reach
agreement on the manner in which the petroleum field or mineral deposit referred to
in paragraph (a) will be most effectively managed and developed and on the
equitable sharing of revenue arising from such development.
PART 5: PROTECTION OF THE ENVIRONMENT, BIODIVERSITY AND
BIOPROSPECTING
Article 12: Protection of the Seabed Marine Environment
(a) The Contracting Parties shall co-operate to protect natural resources in the JMA
so as to secure seabed biodiversity and prevent pollution and other risks of harm to
the
environment arising from, or connected with, natural resource activities in the JMA.
(b) The Contracting Parties shall apply the precautionary principle in co-operating to
25 conserve and protect the environment and biodiversity of the seabed in the JMA.
This
shall include measures concerning fishing activity in the waters superjacent to the
seabed in the JMA where such activity is having a direct impact upon, or poses a
significant risk to, the natural resources of the seabed and subsoil in the JMA.
(c) The Contracting Parties shall co-operate to protect seabed marine habitats and
associated ecological communities of the seabed in the JMA. This shall include the
identification of environmental benchmarks and the identification of seabed marine
protected areas, having regard to the following:
i. geographical distribution of seabed marine species and biological
communities;
ii. the structure of these communities;
iii. their relationship with the physical and the chemical environment;
iv. the natural ecological and genetic variability; and
v. the nature and the effect of the anthropogenic influences including fishing
and natural resource activities on these ecosystem components.
(d) Where pollution of the marine environment occurring in the JMA spreads
beyond
the JMA, the Contracting Parties shall co-operate in taking prompt and effective
action to prevent, mitigate and eliminate such pollution in accordance with
international best practices, standards and procedures.
(e) The Authority shall issue regulations to protect the living natural resources and
seabed environment in the JMA. It shall establish a contingency plan for combating
pollution from natural resource activities in the JMA.
(f) Contractors shall be liable for damage or expenses incurred as a result of
pollution of the marine environment arising out of natural resource activities within
the JMA in accordance with:
i. their contract, licence or permit or other form of authority issued pursuant to
this Treaty; and,
ii. the law of the jurisdiction of the Contracting Party in which the claim is
brought.
Article 13: Biological Surveys and Bioprospecting
(a) Each of the Contracting Parties has the right to carry out biological surveys for
the purposes of Article 12 of this Treaty and to engage in bioprospecting to identify
and examine living natural resources that may be of value for commercial
development in the JMA or of conservation significance.
(b) The Contracting Parties shall:
i. notify the Authority of any proposed survey;
ii.co-operate in the conduct of such biological surveys and bioprospecting,
including the provision of necessary on-shore facilities; and
iii. exchange information relevant to biological surveys and bioprospecting in the
JMA.
Article 16: Criminal Jurisdiction
(a) The Contracting Parties shall examine different options for addressing offences
committed in the JMA. Pending the completion of such exercise, the provisions of
this Article shall apply with respect to offences committed in the JMA.
(b) A national or resident of a Contracting Party shall be subject to the criminal law
of
the country of nationality or residence in respect of acts or omissions occurring in the
JMA connected with or arising out of natural resource activities.
26 (c) Notwithstanding paragraph (e), a national of a third state, not being a resident of
either Contracting Party, shall be subject to the criminal law of either Contracting
Party in respect of acts or omissions occurring in the JMA connected with or arising
out of natural resource activities. Such person shall not be subject to criminal
proceedings under the law of either Contracting Party if he or she has already been
tried and discharged or acquitted by a competent tribunal or already undergone
punishment for the same act or omission under the law of the other country or where
the competent authorities of one country, in accordance with its law, have decided in
the public interest to refrain from prosecuting the person for that act or omission.
(d) In cases referred to in paragraph (c), the Contracting Parties shall, as and when
necessary, consult each other to determine which criminal law is to be applied, taking
into account the nationality of the victim and the interests of the country most
affected by the alleged offence.
(e) The criminal law of the flag state shall apply in relation to acts or omissions on
board vessels operating in the waters superjacent to the JMA.
(f) The Contracting Parties shall provide assistance to and co-operate with each
other, including through agreements or arrangements as appropriate, for the
purposes of enforcement of criminal law under this Article, including the obtaining
of evidence and information.
(g) The Contracting Parties each recognise the interest of the other country where a
victim of an alleged offence is a national of that other country and shall keep that
other country informed, to the extent permitted by its law, of action being taken with
regard to the alleged offence.
(h) The Contracting Parties may make arrangements permitting officials of one
country to assist in the enforcement of the criminal law of the other country. Where
such assistance involves the detention of a person who under paragraph (b) is subject
to the jurisdiction of the other country, that detention may only continue until it is
practicable to hand the person over to the relevant officials of that other country.
PART 7: SURVEILLANCE, SECURITY AND RESCUE
Article 19: Surveillance and Security Measures
(a) For the purposes of this Treaty, the Contracting Parties shall have the right to
carry out surveillance activities in the JMA in relation to natural resource activities.
(b) The Contracting Parties shall co-operate on and co-ordinate any surveillance
activities carried out in accordance with paragraph (a) and shall exchange
information on likely threats to, or security incidents relating to, natural resource
activities in the JMA.
(c) The Contracting Parties shall make arrangements for responding promptly and
effectively to security incidents in the JMA.
Article 20: Search and Rescue
The Contracting Parties shall, at the request of the Authority and consistent with this
Treaty, co-operate and assist in the conduct of search and rescue operations in the
JMA, taking into account generally accepted international rules, regulations and
procedures established through competent international organisations.
PART 8: SETTLEMENT OF DISPUTES, DURATION AND ENTRY INTO
FORCE
Article 21: Settlement of Disputes
(a) With the exception of disputes falling within the scope of the Taxation Code
27 referred to in Article 6 of this Treaty and which shall be settled in accordance with
that Code as agreed by the Contracting Parties, any dispute concerning the
interpretation or application of this Treaty shall, as far as possible, be settled
amicably through mutual consultation.
(b) Any dispute which is not settled in the manner set out in paragraph (a) and any
unresolved matter relating to the operation of this Treaty under Article 4(b)(ii) shall,
at the request of either of the Contracting Parties, be submitted to
Article 22: Amendment
This Treaty may be amended at any time by written agreement between the
Contracting Parties.
Article 23: Duration of the Treaty
(a) This Treaty shall remain in force until a permanent delimitation of the
continental
shelf is agreed between the Contracting Parties or for thirty (30) years from the date
of its entry into force, whichever is sooner.
(b) This Treaty may be renewed by agreement between the Contracting Parties.
(c) Natural resource projects commenced under this Treaty shall continue,
notwithstanding that this Treaty is no longer in force, under conditions that are
consistent with those that are provided for under this Treaty.
Article 24: Entry into Force
(a) Each of the Contracting Parties shall notify the other, by means of exchange of
diplomatic notes, the completion of the procedures required by its law for the
bringing into force of this Treaty. The Treaty shall enter into force on the date of
receipt of the later notification.
(b) Upon entry into force, the Treaty shall be taken to have effect, and all of its
provisions shall be taken to have applied, from the date of signature.
IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their
respective Governments, have signed this Treaty.
DONE at Clarisse House, Vacoas, Mauritius in duplicate on this 13th day of March
Two Thousand and Twelve in the English language.
For the Government of the Republic of Mauritius
Dr the Hon Navinchandra RAMGOOLAM, GCSK, FRCP
For the Government of
the Republic of Seychelles
H. E. Mr. James Alix MICHEL
28 III. Revenue sharing under article 82 of the 1982 UNCLOS73
Moving from the first example of a joint management and revenue-sharing
agreement between two States, the second aspect of revenue-sharing that must be
considered here is that of the provision for revenue-sharing between the coastal
states that have established their continental shelves beyond 200M and the
international community through the operation of Article 82 of UNCLOS.
A. Interpreting article 82 of the 1982 UNCLOS
It is widely accepted that Article 82 of the 1982 UNCLOS represents a compromise
between the divergent interests and thus equally disparate legal positions of two
groups of States at the Third United Nations Conference on the Law of the Sea
(UNCLOS III). The so-called ‘broad margin’ States insisted on claiming sovereign
rights and jurisdiction over their continental shelves beyond 200M; whereas an
opposing group of States, comprised mainly but not exclusively, of landlocked and
geographically disadvantaged States, argued for a final limit for coastal State
continental shelves to be set at 200M. As Pulvenis notes when summarising the
outcome of the negotiations on this issue at UNCLOS III: ‘Having regard to the
specific nature of the coastal State’s rights over the continental shelf…, the
Conference decided not to grant other States or the international community as
represented by the International Sea-Bed Authority a right to direct participation in
the exploration of shelf’s resources; as a compromise it chose to establish an
obligation on the coastal State to share out the revenue it derived at least from
exploiting the mineral resources beyond 200 miles.’74 The authoritative Virginia Law
School’s Commentary on the 1982 UNCLOS notes, ‘...in return for the extension of
the continental shelf beyond the 200-mile limit, the broad shelf States would share
the revenue derived from the exploitation of the (non-living) resources of the
extended continental shelf with the international community through payments or
contributions in kind.’75 The esteemed editors of the Virginia Commentary are in no
doubt that this undertaking by the ‘broad margin’ States represented the second part
of the compromise reached between themselves and the other States keen on
establishing as large a (deep sea bed) Area as possible, with Article 76 being the first
part of the compromise, providing the method for establishing the outer limits of the
continental shelf beyond 200M. Brown too notes that ‘(A)rticle 82 reflects an
attempt to modify the consequences of the (Third Law of the Sea) Conference’s policy
of recognising that the coastal State’s continental shelf rights extended to those parts
of the continental margin which lay beyond the 200-mile line.’76 This view accords
73 As a co-rapporteur to the ILA’s Committee on the Legal Issues of the Outer Continental Shelf, the
author prepared the initial draft report on article 82 that was deliberated on by the Committee at the
2008 ILA Conference in Rio de Janeiro. Since then the ISA has published Technical Study No.4 on the
implementation of article 82 (2009). This section of the paper will therefore re-assess the analysis and
conclusions of the 2008 ILA report in light of the ISA’s technical study, as well as other relevant
information and commentary on these issues.
74 Jean-François Pulvenis, ‘The Continental Shelf Definition and Rules Applicable to Resources’, in
René-Jean Dupuy and Daniel Vignes (eds.), A Handbook on the Law of the Sea, Vol.1, Hague
Academy of International Law, Dordrecht: Martinus Nijhoff (1991) 315-381, at 377.
75 Full title: United Nations Convention on the Law of the Sea: A Commentary, edited by Satya N.
Nandan and Shabtai Rosenne, Vol.II (1993) at p.932, para.82.1.
76 E.D. Brown, The International Law of the Sea, Volume 1: Introductory Manual, Aldershot:
Dartmouth (1994) at 262.
29 with the common position adopted by the African States that participated in the
negotiations to the Convention on this issue. Egede, for example, observes that when
the African States conceded the right of ‘broad margin’ continental shelf States to
claim continental shelves beyond 200M, this concession was based on the
understanding that such States would make contributions or payments from mineral
resource production in the continental shelf area beyond 200M, as a kind of quid pro
quo.77 More recently, Kanehara has tied these two Articles 76 and 82 together as
another example of the ‘package deal’ approach utilised in the UNCLOS negotiating
process.78
More controversially, the revenue-sharing obligation under Article 82 as well as the
ISA role in receiving the proceeds and distributing them among members of the
international community, according to the equitable sharing criteria to be developed
by the ISA, has been interpreted as being the application of the Common Heritage of
Mankind (CHM) principle, even if its application is effectively taking place within the
coastal State’s jurisdiction in the continental shelf area beyond 200M.79 As Oda
points out, this provision was ‘instituted in such a manner that the concept of the
common heritage of mankind plays a role in controlling over-expansion of the
exclusive interests of coastal States in their continental shelves.’80 However, the
recent ISA technical study does not accept this link, maintaining that the revenuesharing requirement under Article 82 was not intended by the negotiating parties to
UNCLOS as an application of the CHM principle and that in any case the point is
moot.81 Kanehara highlights the relatively insignificant role played by the ISA in this
context, as opposed to its starring role in the implementation of Part XI of the
Convention, to suggest that the ISA simply has no power to effectuate the CHM
principle through the Article 82 revenue-sharing obligation.82
Examining the pattern of proposed drafts of Article 82 for effectuating this obligation
in the UNCLOS III negotiations towards the 1982 UNCLOS, several points can be
noted. First, the obligation to make some form of payments or contributions in kind
for the exploitation of the natural resources of continental shelf was accepted by the
developed States within the ‘broad margin’ group of States, including the USA, but
was gradually limited in its application only to the continental shelf beyond 200M
(OCS). Second, the role of the International Sea-bed Authority (ISA) in collecting and
disbursing these revenues was also gradually reduced during the course of UNCLOS
III negotiations. Third, the exemption from making such payments or contributions
for developing States, now provided in Article 82(3), was introduced only later in the
negotiation process. In fact, it first appears in the Informal Composite Negotiating
77 Edwin Egede, ‘The Outer Limits of the Continental Shelf: African States and the 1982 Law of the Sea
Convention’, Ocean Development and International Law, Vol.35 (2004) 157-178, at 158, citing official
statements by African States participating in the Conference and recorded in UNCLOS III, Official
Records, Vol.II, at 160-165.
78 Atsuko Kanehara, ‘The Revenue-Sharing Scheme with respect to the Exploitation of the Outer
Continental Shelf under Article 82 of the UNCLOS – A Plethora of Entangling Issues’, text of
presentation at Seminar on the Establishment of the Outer Limits of the Continental Shelf beyond
200nm under UNCLOS – Its Implications for International Law, Ocean Policy Research Foundation,
on 27 February 2008, at 1-2.
79 ILA (2008) report op.cit., at para.1.3, at 2.
80 Shigeru Oda, International Control of Sea Resources, reprint with new Introduction, Dordrecht:
Martinus Nijhoff (1989) at xxxii.
81 ISA Tech Study No.4 at 23.
82 Kanehara (2008) op. cit., at 5 & 7.
30 Text (ICNT) and was raised as an issue only in the fifth negotiating session in 1976.
Fourth, at no time during the UNCLOS III negotiating process was there any
discussion of proposals for specific dispute settlement procedures to be established
in respect of disagreements between States as to the interpretation of various phrases
within this Article, beyond those provided more generally in Part XV of the
Convention.83
It should be noted that while Article 82(1) provides the basic obligation of payments
or contributions in kind, it does not elaborate on either the amount of the payments,
or value of the contributions in kind to be made, or how these payments or
contributions will be made. Article 82(2) then provides a formula for determining the
amounts of ‘payments or contributions’ to be made. Article 82(4) further provides
that the payments will be made ‘through’ the (International Sea-bed) Authority on
the basis of ‘equitable sharing criteria’ for distribution to other States Parties to the
Convention (i.e., how). The ‘equitable sharing criteria’ used to guide the distribution
of the ‘payments or contributions’ must ‘take into account’, and therefore arguably
prioritize States Parties that are developing countries, especially the least developed
and land-locked among them (i.e., whom). Finally, Article 82(3) provides an
exemption to the general requirement to make such payments or contributions under
Article 82(1). However, this is an exemption that is only applicable upon the
fulfilment of two criteria: First, that the State is a ‘developing State’ and second, that
this ‘developing State’ is a ‘net importer’ of the mineral resource produced from its
continental shelf. It should be noted that either of these two terms – ‘developing
State’, or ‘net importer’, is defined in the 1982 Convention.84
Focussing on Article 82(1), it is the ‘coastal State’ that is under a duty to make the
required ‘payments or contributions in kind’ from the exploitation of the ‘non-living
resources’ in the OCS. Thus, the general obligation to make ‘payments or
contributions in kind’ is imposed on the coastal State, rather than any other entity,
such as the actual producers of the ‘non-living resources’ within the OCS concerned.
The obligation to make ‘payments or contributions in kind’ rests solely with the
‘coastal State’ and not with any other entity that may be involved in the exploitation
of the non-living resources of the OCS.85 In terms of confirming state practice is
concerned, it should be noted that the putative US regulation of article 82 payments
provides that ‘Any such payments will be made by the U.S. Government and not the
lessee.’86
Moving on to article 82(2), the first phrase of this provision states that such
‘payments or contributions’ shall be made ‘annually’ with respect to ‘all’ production
at a ‘site’. The reference to ‘all’ production at a site means the total production at that
site. The fact that the ‘payments or contributions’ are to be made with respect to ‘all’
production also precludes the possibility of the coastal State concerned using the
lower, net value of such production after deducting its own royalties and/or taxes.
Thus, the ‘payments or contributions’ concerned shall be made according to the gross
83
ILA (2008) report op. cit., at para.1.4. Ibid., at para.2.3. 85 Para.2.7 and Conclusion 1 of ILA Report (2008) op.cit.
86 Para.1 of Stipulation No.4, in Western Planning Area
84
31 value of the total production at a ‘site’.87 The ILA Committee therefore agreed to the
following interpretative conclusions on the provisions of article 82(2):
The term ‘all’ production at a site refers to the gross, rather than net, value of the
total production of the non-living resources obtained from that site. Conclusion 2:
Whereas the actual designation of a production ‘site’ for the exploitation of the
nonliving resources beyond 200M limit is within the discretion of the coastal State
concerned, the exercise of this discretion does not allow the coastal State to escape its
obligation under Article 82(1) to make ‘payments or contributions’ for the
exploitation of any non-living resources from the continental shelf beyond the 200M
limit.88
The coastal State can decide the method it will use to calculate ‘the rate of payment
or contribution’ under Article 82(2), subject to communicating this method to the
International Sea-bed Authority as the designated recipient for these ‘payments or
contributions in kind’.89
The coastal State should report on its implementation of the obligations under
Article 82, especially in respect of the following three issues: a) the starting date for
exploitation of the nonliving
resources from the OCS; b) the total annual production of the non-living resources
from the OCS for the purpose of calculating the value or volume of the ‘payments or
contributions in kind’ required to be made ‘through’ the ISA, under Article 82(4);
c) the method applied by the coastal State for determining the value or volume of the
‘payments or contributions in kind’ to be made.90
The coastal State has the choice of making ‘payments or contributions in kind’ to
fulfil its obligation under Article 82, but it cannot decide to make a combined
‘payment’ and ‘contribution in kind’.91:
As it is the coastal State that has to make the required ‘payments or contributions in
kind’, it follows that it is only this State and no other State(s) or inter-governmental
or commercial entities (such as the ISA, or the companies involved in the actual
production of the non-living resources concerned) that has the discretion to decide
on the form in which the payments or contributions will take; the method by which
such payments and/or contributions are delivered to the ISA; and exactly when such
payments and/or contributions will be made to the ISA on an annual basis. Neither
the ISA, ‘through’ which this payment and/or contribution is made, nor any of the
recipient ‘State Parties’ of these payments or contributions, can overturn the
discretion afforded to the coastal State in this respect. However, as the designated
recipient of the payments or contributions made, the ISA can express its view on the
latter two issues: the method and timing of the payments and/or contributions, to
the coastal State concerned. Furthermore, the coastal State’s discretion as to the
form, method and timing of the payments or contributions is circumscribed by
general principles of ‘good faith’ and ‘non-abuse’ of rights, as well as generally
applied international industrial standards and procedures. Conclusion 6:
87
ILA (2008) report, op.cit., at para.2.8. Conclusion 3 of ILA (2008) Report, ibid.
89 Conclusion 4, ibid.
90 Conclusion 7, ibid.
91 Conclusion 5, ibid.
88
32 A further, possibly significant, legal implication of the different terms used in this
context arises from the application of the exemption granted to developing States
that are net importers of a ‘mineral’ (but not ‘non-living’) resource under Article
82(3). It cannot be precluded that the negotiating States to the 1982 Convention
intended to distinguish between ‘non-living’ resources on the one hand, and ‘mineral’
resources on the other hand, with their specific use of the term ‘mineral’ in this
context. Thus, if a developing State is exploiting a ‘non-living’ resource, but one that
is not ‘mineral’ in nature, then the developing State concerned may not be exempt
from the requirement to make payments or contributions under Article 82(1), even if
this State is a net importer of the ‘non-living’, but not ‘mineral’, resource concerned.
However, the ILA Committee on article 82 agreed that such a distinction could not
be sustained in light of the clear object and purpose of this exemption, which is to
shield developing States from having to make payments or contributions in
situations where these States are net importers of the ‘mineral’ or ‘non-living’
resource concerned. 92 Notwithstanding the possible legal implications of the
inconsistent use of ‘non-living’ and ‘mineral’ resources between Articles 82(1) and
82(3), developing States that are net importers of the resources concerned are
exempt from making the required payments or contributions in kind under Articles
82(1) and 82(2).93:
2.21 Another exception to the requirement to make payments or contributions
relates to the last sentence in Article 82(2) which states as follows: ‘Production does
not include resources used in connection with exploitation.’ The inclusion of the
word: ‘resources’ here is problematic as this word is not defined in the 1982
Convention. Article 133 defines ‘resources’ as meaning ‘all solid, liquid or gaseous
mineral resources in situ in the Area at or beneath the sea-bed, including
polymetallic nodules’, but this definition is expressly limited to ‘the purposes of this
Part’, meaning Part XI governing the (deep sea-bed) Area. ‘Resources’ in this context
can therefore be subject to different interpretations. For example, from the
petroleum industry perspective, ‘resources’ can be taken to denote the initial
amounts of less commercially valuable mixtures of oil, gas and/or water that are
produced from a site, which are then pumped back into the petroleum reservoir to
maintain or even increase the reservoir pressure in order to assist in the more
efficient exploitation of the primary form of petroleum production from that
reservoir.94 The ISA study on the implementation of Article 82 concurs, noting that
the term ‘production’ from which payments or contributions will be calculated is
based on product that is ‘ready for market distribution or processing.’95
On the other hand, the word: ‘resources’ here can also be interpreted more widely as
encompassing a whole gamut of financial resources, in terms of capital investments
into the production site, and human resources, in the form of management and
workforce labour time expended on site. This implies that the coastal State is entitled
to deduct the costs of all the financial and human resources, in the form of capital
ILA (2008) report ibid., at para.2.20.
Conclusion 8 of ILA (2008) report, ibid.
94 These are known as ‘gas’ or ‘water injection’ processes, according to the (Selected) Glossary of Oil
and Gas Industry terms, accessible at:
http://www.eandp.demon.nl/glossary
95 ISA Technical Study No.4 (2009) op. cit., at 33-34, citing Aldo Chircop & Brian Marchand,
‘International Royalty and Continental Shelf Limits: Emerging Issues for the Canadian Offshore’,
Dalhousie Law Journal, Vol.26(2) (Fall, 2003) 273-302, at 296.
92
93
33 investment and operating expenses incurred in the exploitation of the non-living
resources from the designated production site, from the payment or contribution
requirements under Articles 82(1) and 82(2). While the ILA Committee was
disinclined to accept such a wide interpretation for the term ‘resources’ within this
context, the absence of a definitive meaning for this word within the 1982
Convention appears to leave coastal States with considerable discretion as to how it
should be interpreted, subject to the general principles of good faith and non-abuse
of rights highlighted above as being applicable in these situations. 96 Thus the
Committee concluded that: ‘The term: ‘resources’ in the last sentence of Article 82(3)
is to be read as being limited to the introduction or re-introduction of physical
elements such as water or gas that are utilized to directly assist in the exploitation of
the non-living resources concerned.’97 It should also be noted that even if the term:
‘resources’ is accepted as including financial and human resources, it is limited only
to such ‘resources’ as are ‘used in connection with exploitation.’ (emphasis added)
Thus any such financial and human ‘resources’ expended in the prospecting and
exploration of a site prior to its actual exploitation or production cannot be excluded
from the calculation of the gross ‘value or volume of production’ at any site.98
B. The ISA role in implementing article 82
Moving on from the definitional and interpretation issues arising from Article 82 of
the 1982 UNCLOS, the following discussion will examine the role of the International
Sea-bed Authority (ISA) in the collection of the ‘payments or contributions in kind’
made by coastal States, as well as their disbursement among the recipient ‘States
Parties’. Here too, several definition and interpretation issues will need to be
resolved in order to ensure the smooth implementation of Article 82. (para.3.1)
Under Article 82(4), coastal States exploiting the non-living resources within the
OCS shall make payments or contributions in kind ‘through’ the International Seabed Authority (ISA) 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. This ‘equitable
sharing criteria’ is to be developed by the Council, as the executive organ of the ISA,
in the form of recommendations to the Assembly, under Article 162(2)(o)(i) of the
Convention. (para.3.2)
3.3 Under Article 162(2)(o)(i) of the 1982 UNCLOS, the Council is given the power to
‘recommend to the Assembly rules, regulations and procedures on the equitable
sharing of financial and other economic benefits derived from activities in the Area
and the payments and contributions made pursuant to article 82, taking into
particular consideration the interests and needs of the developing States and peoples
who have not attained full independence or other self-governing status’. (emphasis
added)
3.4 Then, under Article 160(2)(f)(i) of the Convention, it is further provided that the
powers and functions of the Assembly shall be, inter alia, ‘to consider and approve,
ILA (2008) report at para.2.22.
Conclusion 9 of ILA (2008) report.
98 Ibid., at para.2.23 of the report.
96
97
34 upon the recommendation of the Council, the rules, regulations and procedures on
the equitable sharing of financial and other economic benefits derived from activities
in the Area and the payments and contributions made pursuant to article 82, taking
into particular consideration the interests and needs of developing States and
peoples who have not attained full independence or other self-governing status. ..’
(emphasis added)
3.5 The Council thus has to recommend, and the Assembly consider for acceptance,
the ‘equitable sharing criteria’ to guide the disbursement of revenues (or other
economic benefits) from two separate and possibly different streams: These are first,
any financial and other economic benefits from deep sea-bed mining activities in the
Area (beyond the limits of national jurisdiction); and second, any payments or
contributions in kind from the coastal State under Article 82.
3.6 Here, two issues can be raised: The first issue relates to whether the ‘equitable
sharing criteria’ to be recommended by the Council and accepted by the Assembly
should be the same criteria in respect of each of these two separate streams of
revenues (or other economic benefits). The second issue relates to the list of
beneficiaries to which these two separate streams are directed.
On the first issue, it was noted by the ILA Committee that the criteria for
determining how the financial and other economic benefits from activities in the
Area would be distributed must also take into account the recommendations of the
ISA’s Finance Committee, according to Section 9(7)(f) of the Annex to the 1994
Implementation Agreement.99 On the other hand, the ‘equitable sharing criteria’ for
the distribution of the payments or contributions in kind under Article 82(4) of the
Convention must arguably prioritise ‘the least developed and land-locked’ among the
developing States that receive these benefits. The inclusion of these additional
prioritization factors within the development of the ‘equitable sharing criteria’ for the
distribution of the payments or contributions under Article 82(4), as opposed to the
financial and other economic benefits derived from activities in the Area, which must
be equitably shared on a non-discriminatory basis under Article 140(2) of the 1982
UNCLOS, suggests that two separate sets of distribution lists need to be developed
and applied for each revenue stream. The ILA Committee therefore decided that
‘(T)he procedure through which the ‘equitable sharing criteria’ is to be developed by
the ISA for the distribution of the payments or contributions under Article 82 must
be pursued separately from the criteria for the equitable sharing of the financial and
other economic benefits from mining activities within the Area itself, because of the
need to prioritise the ‘least developed and land-locked’ developing States within the
criteria for payments or contributions under Article 82.’100
An explanation for this apparent divergence in the priority list of entities for the
distribution of Article 82 revenues from the continental shelf beyond 200M, as
opposed to Part XI revenues from the Area, can arguably be made by reference to the
exposition by Miles on the passage towards this article. In tracing the links between
the main negotiating groups (of States) on the draft treaty provisions that was to
become Article 82, Miles provides a possible explanation for the difference in the
provisions for the development of the ‘equitable sharing criteria’ by the ISA
99
Ibid., at para.3.7. Conclusion 10 of the ILA (2008) report ibid. 100
35 institutions as noted above, as opposed to the application of this criteria according to
Article 82(4). This relates to the fact that for a short period of time during the
UNCLOS III negotiations in 1977, the main group of negotiating States that sought to
ensure they would also benefit from the exploitation of resources in the continental
shelf areas beyond 200M, namely, the Land-locked and Geographically
Disadvantaged States (LL & GDS), explicitly linked the acceptance of the coastal state
right to make claims beyond 200M to greater access to fisheries and other living
resources within the then newly-minted 200M EEZs under Part V of the
Convention.101 The influence of the LL & GDS countries on this particular negotiating
point during the UNCLOS III may be the reason why the needs of land-locked
developing states were prioritized in article 82(4) but not explicitly so included in the
provisions for adopting the ‘equitable sharing criteria’ under articles 160(2)(f)(i) and
162(2)(o)(i), respectively, for the ISA.
3.8 In relation to the second issue raised above, namely, the list of beneficiaries to
which these two separate revenue streams are directed, it will be recalled that under
article 82(4), the collected payments and contributions are to be distributed only to
‘State Parties’ to the Convention. Under Article 1(2)(2) of the 1982 UNCLOS, which
refers to Article 305(1)(b)-(f) of the Convention, the term ‘States Parties’ includes,
inter alia, under Article 305(1)(e), not only States but also ‘all territories which enjoy
full internal self-government, recognized as such by the United Nations, but have not
attained full independence in accordance with General Assembly resolution 1514(XV)
and which have competence over the matters governed by this Convention…’
(emphasis added)
3.9 The implications of the above provisions, when juxtaposed against the procedure
for establishing the ‘equitable sharing criteria’ under Articles 160(2)(f)(i) and
162(2)(o)(i), respectively, seem to be that the potential list of beneficiaries appears to
be wider than the entities listed in Article 305(1) as possible ‘State Parties’ of the
Convention. Certainly, the use of the term ’peoples’ rather than ‘territories’ within
these two provisions – Articles 160(2)(f)(i) and 162(2)(o)(i), respectively, to describe
entities that have not yet attained full independence considerably widens the scope of
the potential list of beneficiaries. A discrepancy arises in that both the Council and
Assembly of the ISA appear to be required to take into account the interests of
‘peoples’ who have not attained independence in the ‘equitable sharing criteria’ to be
developed, even though such ‘peoples’ may not actually be capable of becoming
‘States Parties’ to the Convention, under Article 305(1) of the same Convention. This
difficulty is exacerbated when it is considered that Resolution III within Annex I to
the Final Act of UNCLOS III declares in paragraph 1(a) that ‘(I)n the case of a
territory whose people have not attained full independence or other self governing
status recognized by the United Nations, or a territory under colonial domination,
provisions concerning the rights and interests under the Convention shall be
implemented for the benefit of the people of the territory with a view to promoting
their well-being and development.’
These differences in the wording of the relevant Articles can be reconciled by
suggesting that the actions of the ISA’s Council and Assembly are directed towards
the preparation of a potential, rather than definitive, list of beneficiaries of
101 Edward Miles, Global Ocean Politics: The Decision Process at the Third United Nations
Conference on the Law of the Sea 1973-1982, The Hague: Martinus Nijhoff (1998) at 380.
36 developing States and other entities. Thus, these States and other entities will still
have to become ‘States Parties’ to the 1982 Convention before they can actually
partake in the distribution of the payments or contributions in kind made by the
coastal States through the ISA, under Article 82(4).102 The ILA Committee therefore
concluded that ‘(R)egardless of whether the interests of ‘peoples’ or ‘territories’ that
have not achieved full independence are taken into account in the development of the
‘equitable sharing criteria’ within the ISA, these entities will not be able to benefit
from the payments or contributions in kind made by coastal States under Article 82,
until they become ‘States Parties’ to the 1982 UNCLOS.103 The ISA technical study on
article 82 has also noted the ‘inconsistent drafting’ between on the one hand, articles
82(4) and on the other, articles 160(2)(f)(i) and 162(2)(o)(i), respectively, but
suggests that ‘the inconsistency should not be read as substantive because the two
provisions provide criteria that are cumulatively applicable to the distribution of
benefits in Article 82.’104 Moreover, the ISA study argues that the equitable sharing
criteria for the distribution of revenues whether from the continental shelf beyond
200M, or the Area should in any case ‘be synonymous’.105 However, it is submitted
here that newly independent land-locked developing countries (such as South
Sudan), and territories which arguably enjoy full internal self-government, and are recognized as such by the United Nations, but which have not yet attained full
independence (such as Kosovo), may beg to differ on this point. This is because they
(South Sudan and Kosovo) would stand to lose out if their explicit prioritization
under article 82(4) is subsumed within more general equitable sharing criteria
directed mainly towards assisting the poorest developing countries, whether landlocked or not.
C. Settlement of disputes
implementation of article 82
arising
from
the
interpretation
and
A situation may emerge where a coastal State reneges on its obligation to make
payments or contributions in kind under Article 82, or a dispute otherwise arises
between the State concerned and the International Sea-bed Authority (ISA) as to the
payments or contributions in kind received. 106 In the event of such a situation
arising, McDorman considers that ‘the (Authority) would appear to be the body with
the responsibility to pursue the matter since it is specifically mentioned in Article
82(4).’107 However, while it is true that the payments and contributions need to be
made ‘through the Authority’ under Article 82(4), this body has not been assigned a
formal ‘debt collection’ role in this respect, nor has it been given any special powers
with which to compel a reneging coastal State to fulfil its obligations under Article
82. While the Council, as the executive organ of the Authority, has the power/duty to
‘review the collection of all payments to be made by or to the Authority’ (emphasis
added) under Article 162(2)(p) of the Convention, it should be noted that this
ILA (2008) report, op. cit., at para.3.10.
Conclusion 11 of the ILA (2008) report, ibid.
104 ISA Technical Study No.4 (2009) op. cit., at 39.
105 Ibid.
106 ILA (2008) report, op. cit., at para.4.1
107 Ted L. McDorman, ‘The Entry into Force of the 1982 LOS Convention and the Article 76 Outer
Continental Shelf Regime’, International Journal of Marine & Coastal Law, Vol.10, No.2 (1995) 165187, at 175.
102
103
37 power/duty is limited to operations pursuant to Part XI of the 1982 UNCLOS, the
scope of which applies only to activities in the Area.108
4.2 Since the Authority’s role in this respect appears to be limited only to the
collection and transmission of such payments or contributions according to the
‘equitable sharing criteria’ to be developed by the organs of the ISA, it does not
appear that the Authority has standing to utilise the UNCLOS dispute settlement
system. This is unlike the Authority’s role in respect of activities in the (deep sea-bed)
Area, which in the event of disputes arising between States Parties, or between States
Parties and the Authority or other international institutions for the Area established
by the Convention, allows for recourse to the Sea-Bed Disputes Chamber under
Article 187, or by either a Special Chamber of the International Tribunal for the Law
of the Sea, or an Ad Hoc Chamber of the Seabed Disputes Chamber or to binding
commercial arbitration, under Article 188 of Part XV. Thus, it is arguable that the
only entities that can make legitimate claims in the event of any non-payment by the
coastal State, or any dispute over the amount or other aspects of these payments or
contributions, are the ‘States Parties’, particularly, ‘the least developed and landlocked’ developing States that are slated to be the main beneficiaries of these
payments or contributions, under Article 82(4). Such a dispute between States
Parties ‘concerning the interpretation or application of this Convention’ can be
brought before the dispute settlement procedures within Part XV of the Convention.
4.3 On the other hand, it is possible for either the Assembly or the Council of the ISA
to seek an advisory opinion from the Seabed Disputes Chamber under Article 191 of
the Convention on ‘legal questions arising within the scope of their activities’.
(emphasis added) As the ISA is the designated initial recipient of coastal States’
payments or contributions, and both the Council and the Assembly are among the
principal organs of the Authority under Article 158(1), this role is arguably within
‘the scope of their activities’. Thus, either the Council or the Assembly can arguably
refer any question of non-payment by a coastal State to the Chamber for an advisory
opinion. A further possibility by which the jurisdiction of the Sea-Bed Disputes
Chamber to give an advisory opinion can be engaged is through Article 159(10) of the
1982 Convention, which states that: ‘Upon a written request addressed to the
President and sponsored by at least one fourth of the members of the Authority for
an advisory opinion on the conformity with this Convention of a proposal before the
Assembly on any matter, the Assembly shall request the Sea-Bed Disputes Chamber
of the International Tribunal of the Law of the Sea (ITLOS) to give an advisory
opinion thereon and shall defer voting on that proposal pending receipt of an
advisory opinion by the Chamber. …’
The scope of the Chamber’s advisory jurisdiction under article 191 was considered by
the Chamber in its Advisory Opinion,109 where it noted that: ‘… article 191 of the
Convention also requires that an advisory opinion must concern legal questions
“arising within the scope of [the] activities” of the Assembly or the Council. In the
108
Articles 134(1) and 134(2) of Part XI of the Convention. 109 RESPONSIBILITIES AND OBLIGATIONS OF STATES SPONSORING PERSONS AND ENTITIES
WITH RESPECT TO ACTIVITIES IN THE AREA, SEABED DISPUTES CHAMBER OF THE
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, Advisory Opinion, Case No.17 (1
February 2011)
Accessible at:
http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf
38 present case, it is for the Chamber to determine whether the legal questions
submitted to it arose within the scope of the activities of the Council. Therefore, it is
pertinent to examine the provisions of the Convention and of the 1994 Agreement
that define the Council’s competence.(Article 41, at p.17 of Adv Opinion)
Having then examined the relevant UNCLOS provisions, including ‘The powers and
functions of the Council are set out in Part XI, section 4, of the Convention and, in
particular, article 162 thereof, read together with the 1994 Agreement.’(para.42) the
Chamber concludes that the legal questions before it fall within the scope of the
activities of the Council, since they relate to the exercise of its powers and functions,
including its power to approve plans of work. (para.44, at p.18)
4.4 However, questions can still be raised about the jurisdiction of the Sea-Bed
Disputes Chamber to hear such requests for an advisory opinion as the preamble to
Article 187 of the Convention apparently limits the Chamber’s jurisdiction to
‘disputes with respect to activities in the Area’. Despite this limitation, it can still be
argued by reference to Article 187(f) that the Chamber has jurisdiction in ‘any other
disputes for which the jurisdiction of the Chamber is specifically provided in this
Convention.’ Moreover, it is also possible to read the apparent limitation to the
Chamber’s jurisdiction under the preamble to Article 187 as in itself being confined
to the contentious jurisdiction of the Chamber. Thus, Article 191 (and possibly Article
159(10)) of the Convention) would seem to provide the Chamber with advisory
jurisdiction to hear requests from the ISA’s Council or Assembly for advisory
opinions on ‘the scope of their activities.’ The significant role that the ISA plays as the
designated recipient of the ‘payments and contributions in kind’ under Article 82,
coupled with the equally significant roles that both the Council and Assembly of the
ISA play in establishing the ‘equitable sharing criteria’ for determining the
distribution of the ‘payments or contributions in kind’ received, suggest that any
disputes arising from these roles are legitimately ‘within the scope of their activities’,
according to the requirements laid down by the International Court of Justice in its
advisory opinion on the Legality of the Use of Nuclear Weapons by A State in Armed
Conflict (1996).110 Moreover, Article 191 enjoins the Chamber to deliver such advisory
opinions ‘as a matter of urgency’.
In the event of disputes arising from the interpretation and application of Article
82,the scope for the ISA to engage the coastal State within the dispute settlement
procedures of the 1982UNCLOS is limited to seeking an advisory opinion from the
Sea-Bed Disputes Chamber. States Parties on the other hand, can utilize the dispute
settlement procedures under Part XV against the coastal State concerned to ‘settle
any dispute between them concerning the interpretation or application of this
Convention.’ 111
110 See: Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion 8 July
1996, ICJ Reports (1996) 66, at 78-81, paras.25-26.
111
Conclusion 12 of ILA-CLIOCS Report on Article 82 of UNCLOS (2008) 39 Conclusions
‘Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the
end of the beginning.’112
The delineation and delimitation aspects of the final limits of the continental shelf
beyond 200M for many eligible coastal/island states is proceeding apace, with the
CLCS playing a vital but arguably still legally uncertain role in this process. What is
increasingly becoming clear however is that even when the ‘lines in the sea’ are fully
drawn-up, there remain significant implementation issues involving either
neighbouring states, or the ISA representing the interests of the international
community, over the article 82 of the 1982 UNCLOS.
Quote from a speech by British prime minister Winston Churchill following the defeat of Rommel’s
(German) army in what he called the ‘Battle of Egypt’ in the north African war theatre during World
War II, entitled: "The End of the Beginning", The Lord Mayor's Luncheon, Mansion House, on
November 10, 1942. Accessible at:
http://www.churchill-society-london.org.uk/EndoBegn.html
112
40