10 Looking Ahead
- Biodiversity — Marine living resources — Coastal states — Continental shelf — High seas — UNCLOS (UN Convention on the Law of the Sea)
Although the extended continental shelf is an area of the seabed that is far from shore, it would be a mistake to think that it is not a current issue for coastal States. On extended shelves less than 1500 metres below the surface, fishing activities may already be taking place, which will have an impact on sedentary species, including corals and sponges. Exploration for hydrocarbons beyond 200 nm is currently occurring in some parts of the world, and is being actively pursued by coastal States in other places. Scientists are exploring the unique and fascinating ecosystems that can be found on the sea floor. In the future these activities are likely to intensify and expand as technology overcomes the challenges of depth and distance. Inevitably, there will be conflicts between the interests of users of the high seas and the coastal State’s rights to the resources of the shelf.
As States work through the process of producing their submissions to the Commission on the Limits of the Continental Shelf (CLCS), they will need to turn their attention to the activities occurring on their extended continental shelves. There are a number of different ways that States can choose to exercise their sovereign rights and this book does not presuppose any particular outcome. However, at a minimum, coastal States that are party to the Convention on Biological Diversity (CBD) will need to turn their minds to the issue of the biodiversity on the continental shelf beyond 200 nm. Other environmental obligations also exist in the Law of the Sea Convention (LOSC) and customary international law, including the obligation to conduct environmental impact assessments (EIAs) for activities that could pose a risk to areas under another State’s jurisdiction or areas beyond national jurisdiction. These environmental considerations will need to be integrated into any decision-making about exploiting the resources of the extended continental shelf.
Although many of the legal considerations in relation to the extended continental shelf are not significantly different than within 200 nm—for example, the rights in relation to cables and pipelines—there are some important respects in which the legal regime applying to the extended continental shelf needs separate consideration. The primary examples are the obligations in article 82 in relation to payments for exploitation of the extended continental shelf, and article 246(6) which limits the situations in which coastal States can refuse consent for marine scientific research projects outside 200 nm. The fact that the coastal State has no sovereign rights in respect of the high seas above the continental shelf requires coastal States to be conservative in their actions to avoid interfering with high seas freedoms. In particular, the lack of control over fishing in the high seas means that it may be References(p. 242) more difficult to protect vulnerable seabed resources. However, this book has made some suggestions as to how coastal States can respond to this risk.
Coastal States do not need to wait until the outer limits can be set in accordance with the recommendations of the CLCS. In fact, if the progress of the CLCS proceeds at its current pace, it will be several decades before it will finish its work.1 However, so long as an extended shelf exists in fact, then so too do rights under article 77 of the LOSC. Of course, coastal States will need to act with restraint in the exercise of those rights where there is a possibility that there may be overlapping interests in the high seas, with neighbouring States and in relation to the Area.
One of the goals of the LOSC was to create certainty about the extent of various maritime zones and the rights and obligations of States in those zones. However, the extension of maritime jurisdiction has resulted in an expansion of the potential delimitation disputes between States. Less than half of the possible global maritime boundaries have been delimited.2 One estimate was that, of the 30 million km² of potential extended continental shelf areas subject to submissions to the CLCS, more than 2.7 million km² are subject to overlapping claims.3 The CLCS has stated that it is not prepared to consider submissions to the extended shelf when there is a dispute as to land or maritime boundaries, unless all parties agree.4 Therefore, uncertainty as to the precise boundaries of a coastal State’s continental shelf beyond 200 nm with its neighbours and the Area is likely to continue for many years.
Article 83 of the LOSC establishes that, in the absence of agreement on maritime boundaries, States should make every effort to enter into provisional arrangements of a practical nature and not to hamper the reaching of the final agreement. There is already considerable practice on joint development agreements for areas within the exclusive economic zone (EEZ) and this practice can be applied to the shelf beyond 200 nm as well.5 Mauritius and the Seychelles have applied the concept of joint development to the area of their joint continental shelf.6 The Joint Management Area covers an area that was subject to a joint submission to the CLCS and which References(p. 243) has been established pursuant to recommendations from the CLCS. Rather than engaging in a potentially divisive delimitation process between the two States, they have developed an innovative solution that involves managing the extended shelf jointly and sharing the profits of any exploitation equally. Although this model will not suit every situation where there is a non-defined boundary, it emphasizes the utility of creative responses under the framework of article 83. It can be much easier to reach agreement on boundaries when little or no exploration or exploitation has occurred because there will be fewer vested interests on either side. This will be the case for most extended shelves at present. Therefore, there is a window of opportunity for coastal States to pursue cooperative approaches towards resolving boundary disputes.
Although the provisions in the LOSC regarding the continental shelf do not explicitly refer to developing States, these States face greater challenges than those faced by developed countries, primarily owing to the practicalities of exercising jurisdiction in remote and deep parts of the ocean. A problem for all coastal States is the lack of information about the extended continental shelf, and developing States with limited resources are particularly challenged in this respect. Information is central to the exercise of coastal State rights on the continental shelf beyond 200 nm. If States do not know about the presence of resources on the shelf, then it is very difficult to begin to make management decisions in relation to them. If a coastal State needs to build consensus for protective measures through an international organization, it will need to have a well-developed, scientifically-based case to present. Many coastal States have gathered substantial amounts of data to build a case for the establishment of a right to an extended shelf. This data could be used to draw initial conclusions about the sorts of resources that could be present, although it is likely that much more research will be required for each State to be even modestly informed about the extent and nature of those resources.
Obtaining information about the extended continental shelf and its resources is expensive and time-consuming. In terms of hydrocarbons, it is likely that commercial incentives mean that private actors will be interested in conducting research into the possible presence of non-living resources. States can require companies to provide environmental information as part of the decision-making process, which may add to the coastal State’s knowledge base.
Fishing activities are often less strictly regulated than the hydrocarbon industry in terms of their environmental consequences but they have an impact over a much larger area. Therefore, it will be important for the international community to support initiatives to expand knowledge about the areas of continental shelf that extend beyond 200 nm in partnership with those States that wish to learn more. This might be done by funding projects aimed at the identification of biodiversity, that would be conducted by experts and the results shared with the coastal State, for (p. 244) example under the CBD. Another option is for the coastal State to facilitate marine scientific research by foreign researchers on its extended continental shelf that also builds local research capacity.
C. The Intersection Between the Extended Continental Shelf and an International Agreement for Biodiversity Beyond National Jurisdiction
The international community is considering whether to proceed with negotiations for an international agreement (IA) to the LOSC that addresses the conservation and sustainable use of biological diversity in areas beyond national jurisdiction—referred to colloquially as the ‘BBNJ’ process. The IA will not directly address the issue of the biological resources of the continental shelf on the basis that this is an area within national jurisdiction. However, any IA would cover activities in the high seas above the continental shelf and, because such activities may have an impact on the continental shelf, there will be some important overlaps.
In June 2015, the General Assembly agreed to develop a legally binding instrument under the LOSC on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.7 This decision was the result of more than a decade of informal discussions at the United Nations about the issues that underpin the need for an agreement.8 The topics that may be included in the IA comprise:9
[t]he conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, environmental impact assessments and capacity-building and the transfer of marine technology.
The General Assembly has instructed that the IA should not undermine existing legal instruments and relevant global, regional and sectoral bodies. Therefore, the treaty is likely to be negotiated as an implementing agreement to the LOSC in a similar manner to the 1995 United Nations Fish Stocks Agreement.10
An obvious issue that coastal States will need to consider during the IA negotiation process is whether the IA can address the way in which conflicting high seas and continental shelf activities can be managed cooperatively. A question References(p. 245) is whether the IA will contain any special mention of the role of the coastal State when high seas activities potentially impact on the continental shelf beyond 200 nm.
Of course, any discussion about activities in areas beyond national jurisdiction will need to consider the coordination between flag and relevant coastal States where there are issues that affect them horizontally, for example where high seas activities impact on an EEZ. However, with the continental shelf beyond 200 nm there is a direct vertical interaction between the water column and the resources of the continental shelf, which will require special attention. Coastal States will not want the IA to infringe upon or limit their choices in relation to the continental shelf, but establishing processes by which the interactions can be considered and addressed would be useful.
One way to do this is to consider the process for EIAs for activities conducted in the high seas. Warner has suggested that one stage of this process might include public notification and consultation.11 Questions might arise including whether the coastal State should be informed if the proposed activity will occur close to its continental shelf. What ability does a coastal State have to be included in the consideration of the EIA conducted by another State? In relation to the scope of the assessment, should the EIA assess the potential impact on a continental shelf and take into account the interests of the coastal State? Existing customary international law would suggest that States have obligations to conduct an EIA and notify and consult with affected coastal States if their activities will have a significant impact on the extended continental shelf. These considerations should be incorporated into any EIA process in the IA.
Any consideration of marine spatial planning or the establishment of marine protected areas (MPAs) in the high seas will also need to consider the rights of coastal States when the MPA lies above an extended continental shelf. The MPA should not contain conditions that infringe the coastal State’s rights in relation to the living or non-living resources of the continental shelf. An example of this might be a prohibition on loud marine noise above a shelf that would technically prevent seismic surveys. Another example might be a prohibition on fishing that interferes with the harvest of a sedentary species. However, the ability to create MPAs and other spatial measures may be a benefit for coastal States that want to protect vulnerable marine ecosystems from the activities of other States. In this case, the process for establishing MPAs should acknowledge the special interest that coastal States have in relation to activities above the extended continental shelf.
Another important aspect of the IA will be the discussion about the use of genetic resources. One of the contentious issues that arose during the informal discussions in the BBNJ process was the status of genetic resources on the deep References(p. 246) seabed and what legal regime applies to their exploitation. A growing interest in biotechnology has raised the prospect that living organisms found in areas beyond national jurisdiction could be a source of revenue. Marine genetic resources are not referred to explicitly in Part XI of the LOSC and a range of views has been expressed about what legal regime, if any, applies to them. One group of States has taken the position that Part XI of the LOSC, which applies the common heritage of mankind to mineral resources on the seabed beyond national jurisdiction, does not cover living resources. Therefore, the appropriate governing principle in relation to genetic resources would be the freedom of the high seas. In that case, any private actor who retrieved a sample of an organism found on the deep seabed and derived a commercial product from it would be free to keep the entire profit for itself.12
The opposing view was that the common heritage of mankind principle originated in General Assembly Resolution 25/2749, which declared that the resources of the seabed beyond national jurisdiction are the common heritage of mankind. Although the LOSC defines ‘resources’ as minerals,13 no distinction between living and non-living resources appears in Resolution 25/2749.14 Therefore, it was argued, the benefits of developing these resources should be governed by the principle of the common heritage of mankind. In that case, benefits from exploitation of the resources would be returned to the international community to recognize that the source of the product came from the Area. However, the LOSC makes no provision for such a process—there are significant differences between the issues facing exploitation of minerals and the development of biotechnology from living organisms. Although some have suggested that the International Seabed Authority (ISA) could play a role in a new regime, this will not be possible under the current legal framework.
Over time it has become clear that some middle ground will have to be found between these positions. It is likely that innovative new approaches may need to be used to achieve a balanced system for access to deep seabed resources and benefit sharing.15 This solution is likely to draw on the experiences under the CBD in relation to access and benefit sharing.16
References(p. 247) One aspect of the negotiations will be particularly relevant for the extended continental shelf. Few people have seriously challenged that living resources in the water column of the high seas will remain subject to the freedom of the high seas. Therefore, two different legal regimes will apply to the resources of the water column and the resources of the seabed, and this will need to be reconciled by the IA.
One possible approach is that the IA could use the ‘sedentary species’ definition as a starting point for the distinction because it bears similarities to the high seas/Area situation, where different regimes apply to the seabed and the superjacent water column.17 This would be an attractive analogy because it might seem straightforward. In a situation where the ‘sedentary species’ definition is used successfully in the IA, it is possible that the balancing of rights between the genetic resources of the seabed and the water column may assist coastal States to manage the intersection between the extended continental shelf genetic resources and the water above through application by analogy. It may provide some legal certainty about the extent of the rights to sedentary species and how they can be exercised in regard to activities in the water column.
However, as discussed in Chapter 4, the ‘sedentary species’ definition becomes very difficult to apply in relation to ecosystems that may have mixed sedentary and non-sedentary species. Any stark division between seabed and water resources is arbitrary and does not reflect the sorts of ecosystems found on or near the seabed.18 In addition, there are real questions about the ‘harvestable stage’ of an organism that is targeted for its genetic properties, rather than for consumption. The negotiations may result in a different approach being taken to distinguish between the high seas and seabed resources—if, indeed, any distinction is necessary. For example, the negotiations may conclude that the seabed regime applies to any genetic resources found within a certain distance from the sea floor. Or the legal regime could focus on types of ecosystems.19 In this case the IA will have less relevance for coastal States and their management of sedentary species.
Coastal States have an opportunity to consider whether the relationship between the extended continental shelf and activities in the high seas should be addressed in the new IA. It may be that coastal States would be concerned that their sovereign rights over the extended continental shelf will be diminished if the IA refers in any way to the shelf. However, as demonstrated in relation to a possible process for EIA, there may be a case for protecting their interests through inclusion of procedural requirements to consider coastal States’ interests.
As discussed in Chapter 2, there are a range of possible human activities that could occur in relation to the exploration, exploitation and conservation of the resources of the continental shelf beyond 200 nm. Developments in technology are increasing the depths at which resources can be exploited. Increasingly, attention is turning to offshore areas for the supply of minerals and hydrocarbons, as demand continues to rise and known deposits are exhausted.20 The willingness of private actors to invest in distant offshore exploitation facilities will in part depend on the price of the resource, the availability of onshore reserves, the cost of extraction, the state of technology and legal certainty in relation to the rights to exploit the resource. Schofield is correct to caution that ‘a sense of perspective is advisable’.21 It is true that there will not be an economic bonanza for coastal States in the near future from exploiting resources on the extended shelf. However, eventually, exploitation of non-living resources on the extended continental shelf will take place.
The issue of living resources may need to be addressed by coastal States earlier than non-living resources in light of international obligations in relation to the preservation of marine biodiversity and interest in bioprospecting. While non-living resources are unlikely to be impacted on by activities of other States, living resources are more vulnerable. Bottom trawling for high seas species is already occurring on some extended continental shelves, with significant impacts on the benthic environment. Of course, living resources can be vulnerable to natural events as well as human perturbation and so establishing a representative network of MPAs where possible will meet a coastal State’s obligations under international law, as well as protecting its interests in the genetic material found there.
As it is early days, State practice in relation to coastal State rights and obligations on the continental shelf beyond 200 nm is extremely limited. The extent to which the international community can reach a common viewpoint on the appropriate intersection between coastal and flag State rights will become clearer over time. However, disputes that have arisen in relation to the intersection of rights in other maritime zones, such as the EEZ, indicate that tension between positions is likely to occur. This book has endeavoured to flesh out some of the legal issues that may arise and provide a framework for evaluating competing interests.
When considering the intersection between the continental shelf beyond 200 nm and the high seas, State practice under the Continental Shelf Convention provides some guidance as to how articles 77 and 78 of the LOSC should be dealt with. That Convention created a situation where the coastal State had rights over the resources of the seabed but not the superjacent high seas. Today, coastal States are facing a similar position with the part of their continental shelf that extends beyond 200 nm.
(p. 249) Of course, Part VI of the LOSC is different in many respects from the Continental Shelf Convention. It has introduced new limitations on coastal State rights regarding the shelf. These provisions must be seen in light of the ‘package’ that was negotiated. Broad margin States were allowed to claim rights over the extended continental shelf but, in return, had to accept limitations on those rights. Article 82 in particular was central to the agreement that was reached. The obligation to make payments in relation to exploitation on the continental shelf beyond 200 nm reflected the compromise that was made by States wanting that area to belong to the international seabed area and be covered by the common heritage of mankind.
Any interpretation of the rights of coastal States must take into account the character of that compromise. At the present time, more than thirty years after the LOSC was concluded, decision-makers may not remember the policy behind articles 82 and 246(6). However, it is important for current interpretation and practice to reflect the history and development of the law of the sea. This is particularly important in the case of States not party to the LOSC, but who wish to make use of article 76 to justify their exercise of jurisdiction over the entire continental shelf. If such States refuse to implement article 82 this could precipitate a serious dispute.
The intersection of the high seas and the continental shelf regimes is another possible point of friction. Where high seas activities take place close to, or even on, the seabed, the coastal State has an interest in the impact that these activities have on the seabed. The requirement not to infringe or unjustifiably interfere with high seas freedoms in article 78(2) limits coastal States’ ability to prevent or regulate high seas activities to situations where the high seas activities have a serious impact on the coastal State’s rights over the resources of the seabed and where there is no less restrictive option. This does not mean that the coastal State can never interfere with high seas freedoms, but it must be a last resort and only in the most serious cases.
It is important to acknowledge that any attempts by coastal States to unilaterally prevent or interfere with high seas freedoms will be controversial. Even if the coastal State action can be justified in terms of the protection of sovereign rights, it will not easily be accepted by flag States. If it proposes to undertake unilateral action, the coastal State would be strongly advised to consult States that might be affected with a view to reaching agreement. The history of the law of the sea is filled with examples of how unilateral State action can create disputes between States. Coastal States are always under an obligation to seek to resolve such problems peacefully.
Flag States should also understand that there will be limits on what their vessels can do in the high seas as a result of coastal State rights to the continental shelf beyond 200 nm. High seas freedoms are not absolute under the LOSC. Where their vessels are undertaking operations on or near another State’s extended continental shelf, it should be expected that some limitations on those activities may be required in order to protect coastal State rights. On the other hand, they should be able to expect that such interference is only made in exceptional circumstances. The focus of this book has been on the coastal State, but the analysis is relevant to all States involved in high seas activities. It can be expected that there will be disagreements over matters lying at the intersection of coastal State and flag State interests.
(p. 250) A preferable approach would be for coastal States to seek to cooperate in multilateral or bilateral fora to provide the best opportunity to achieve their goals in a non-confrontational manner. The case of the North-east Atlantic is an excellent exemplar. Given that activities on remote parts of continental shelves are developing relatively slowly, obtaining support in international or regional organizations for limitations on high seas activities that might impact on the extended continental shelf may be easier if approached sooner rather than later.
The continental shelf beyond 200 nm feels like the ‘final frontier’ in the LOSC. In respect of all other zones, State practice and international instruments have fleshed out the areas of agreement and disagreement. However, the extended continental shelf still feels like the wild west. States have, legitimately, sought to maximize their control over an area about which the possible economic returns are uncertain. There is much we do not know about the extended continental shelf and its resources. The process for submissions to the CLCS has taken much longer than expected when the LOSC was originally concluded. The legal situation, where the coastal State has exclusive rights to the seabed and the superjacent water is the high seas, is unique in the LOSC and we have to look back to the situation that existed prior to 1972 to find any parallels.
Philip Allott, in his erudite article, observed that legal relations and delegation of powers are layered in the LOSC so that ‘my right may begin where someone else’s right ends. The more extensive my power, the more limited someone else’s freedoms’.22 He observed that the rights in the LOSC are shared powers, ‘shared between the holder of the power and the community of States, in which regard for the interests of other States and of all States is of the essence’.23 In the context of the relationships established by the LOSC, it is little wonder that the intersection of power, rights and freedoms on the continental shelf beyond 200 nm is complex. It is not just the coastal State that has an interest in the interplay in relation to the continental shelf beyond 200 nm—so too does the international community. Therefore, the first instances of State practice in this area will be heavily scrutinized and analysed. It is hoped that this book provides some framework for the discussion.
3 Robert Van de Poll and Clive Schofield, ‘A Seabed Scramble: A Global Overview of Extended Continental Shelf Submissions’, Proceedings of the Advisory Board on the Law of the Sea (ABLOS) Conference on ‘Contentious Issues in UNCLOS: Surely Not?’ (2010): pp. 1–11, pp. 3–4.
5 See, e.g. Vasco Becker-Weinberg, Joint Development of Hydrocarbon Deposits in the Law of the Sea (Heidelberg: Springer, 2014); and R Beckman et al., (eds), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (Cheltenham: Edward Elgar Publishers, 2013). See also ch 5.
6 See ch 9.
8 Information about the informal discussions can be found on the website of the Division for Ocean Affairs and the Law of the Sea www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm.
10 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (opened for signature 4 December 1994, entered into force 11 December 2001) 2167 UNTS 88.
11 Robin Warner, ‘Environmental Assessment in Marine Areas beyond National Jurisdiction’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Cheltenham: Edward Elgar, 2015): pp. 291–312, p. 310.
12 Dire Tladi, ‘Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction: Towards an Implementing Agreement’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Cheltenham: Edward Elgar, 2015): pp. 259–71, p. 261.
14 Tladi, ‘Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction’, p. 261; de La Fayette, ‘A New Regime for the Conservation and Sustainable Use of Marine Biodiversity and Genetic Resources’, p. 267; Tullio Scovazzi, ‘Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Sea-bed Authority’ International Journal of Marine and Coastal Law 19 (2004): pp. 383–409, p. 386.
15 Morten Walløe Tvedt and Ane E Jørem, ‘Bioprospecting in the High Seas: Regulatory Options for Benefit Sharing’ Journal of World Intellectual Property 16 (2013): pp. 150–67; Petra Drankier et al., ‘Marine Genetic Resources in Areas beyond National Jurisdiction: Access and Benefit Sharing’ International Journal of Marine and Coastal Law 27 (2012): pp. 375–433.
19 As proposed by Leary, who argues that it would be appropriate to create legal regimes to apply to hydrothermal vents, for example, rather than following a sedentary species approach. Leary, International Law and the Genetic Resources of the Deep Sea, p. 94.
21 Ibid., p. 293.
23 Ibid., p. 27.